R v L.J., 2023 ABKB 672

Court of King’s Bench of Alberta Citation: R v L.J., 2023 ABKB 672 Date: 20231127 Docket: 210423000Q1 Registry: Edmonton Between: His Majesty the King Crown - and - L. J. Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify any child victim must not be published, broadcast, or transmitted in any way.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. _______________________________________________________ Sentencing Decision of the Honourable Madam Justice S.E. Richardson _______________________________________________________ Introduction [ 1 ] Mr. J entered a guilty plea to sexual interference (s. 151 CC ) and possessing child pornography (s. 163.1(4) CC ).

The Crown seeks 4.5 years jail on the s. 151 offence and a consecutive sentence of 6 to 12 months for the s. 163.1(4) offence. The Defence argues for an 18 month jail sentence on the s 151 offence and a consecutive sentence of 3-6 months on the s 163.1(4) offence. Further, Defence counsel argues that the Offender should be permitted to serve his sentence under the authority of a Conditional Sentence Order (CSO). It is common ground that s 718.3(7)(

a) CC requires that the two sentences be served consecutively.

[ 2 ] For the reasons that follow, Mr. J is sentenced to 3.5 years jail on the s 151 offence with a consecutive sentence of 12 months jail on the s 163.1(4) offence. [ 3 ] All the ancillary orders are agreed except the Crown’s request for a s 161(

a) CC order, which Defence counsel argues first, should be imposed for 10 years, instead of the 20 years suggested by the Crown. Defence counsel also argues that the “public park” restriction found in s 161(1)(

a) is ambiguous and unworkable as an enforceable condition. I disagree on both assertions. As will be discussed, Mr. J presents a moderate risk to reoffend and requires intensive counselling and intensive psychological treatment as well as community supervision to enhance compliance with his treatment needs. He presents with existing pedophilic and hebephilic interests. These pose a risk to the public, and children in particular. The s 161(1)(

a) order is designed to assist Mr. J in in keeping him away from children as well as to protect children from unknowingly interacting with someone who has previously sexually victimized children and whose psychological presentation requires intensive treatment to mitigate his risk of doing so again. [ 4 ] The prohibition against “attending a public park…where persons under the age of 16 are present or can reasonably be expected to be present” is not ambiguous or unenforceable.

This includes recreational areas adjacent to elementary and junior high schools, sports fields near elementary and junior high schools, public parks with play structures, wading pools and splash decks. The length of this s 161 order will be 20 years as a result of Mr. J’s existing risk profile for recidivism of a sexual nature and his need for intensive treatment. Circumstances of the Offence [ 5 ] Mr. J had just turned 18 years old in July 2018 when he “met” the victim over a social media application called Omegle. During their initial communications, the victim advised Mr. J she was 12 years old. Mr.

J quickly initiated communication on sexual topics. They learned early on that they lived 20 minutes away from each other in Edmonton. Mr. J asked the child to send him intimate pictures of herself. She complied by sending pictures of her naked breasts and vagina. He told her over the chat function that he masturbated to the pictures she sent him. All this occurred within the first two days of them “meeting” online. I agree with Crown counsel that this constitutes grooming behavior by Mr. J. [ 6 ] Two days after they began communicating online, they met in person at a park. They talked and he walked her home.

Shortly thereafter, the child’s family moved out of town to rural area and the online communication between Mr. J and the child stopped. [ 7 ] Approximately a year later without any intervening communication, the child contacted Mr. J and gave him her rural address. This was in early 2020 when he was 19.5 years old. After receiving this information, He drove to the child’s home, and she snuck out to meet him unbeknownst to her parents. She was 14 years old He drove her away from her home, whereupon they got into the back seat of his car and he began to kiss her.

He touched her breasts over and under her clothing and licked her vagina. He then penetrated her vagina with his penis using condoms that he had brought with him. After this, he drove her back to her home. [ 8 ] In January 2021 Mr. J was arrested and his cell phone was seized by police. The cell phone contained the Discord app with the same username that he had used to communicate with the victim. As well, police located 70 visually different images of child pornography and 20 visually different videos of child pornography. None of these images or videos depicted the victim of the sexual interference.

The contraband images depicted predominantly female children between the ages of 4 and 14 years old.

The images contained depictions of naked and partially clothed children alone; naked children touching their genitals; naked children touching the genitals of other children; naked children touching the genitals and being touched by adults; adult men forcing their penises into the mouths and vaginas of children; children penetrating their vaginas with objects. [ 9 ] The videos depicted females children between the ages of 7 and 14 years old, and depicted children nude, touching their genitals and touching the genitals of other children, children touching the genitals of adults, adults touching the genitals of children, children penetrating their vaginas with objects, an adult male forcing his penis into the mouth of a female child while holding her head and then ejaculating into her mouth and onto her face. [ 10 ] The Crown suggested that the Court should view a representative sample of this contraband in order to accurately assess the gravity of the offence.

I declined that invitation, explaining that if it was the position of the Crown that the Court had to view this evidence in order to undertake the sentencing analysis, that I would defer to that request. However, the Crown fairly indicated that while it may assist in the sentencing analysis, viewing the contraband was not necessary. [ 11 ] I gave brief oral reasons for the decision not to view the contraband. These extemporaneous reasons included that the Crown agreed that the Agreed Statement Facts (ASOF) accurately articulated the nature of the material.

To view the images would expose the children in these images to additional and unnecessary trauma knowing that these images are in circulation and subject to continued viewing. I agreed with Defence counsel that in these circumstances, the probative value of viewing this contraband was outweighed by the potential prejudicial effect. Viewing such contraband material has the potential of overwhelming the dispassionate process that is required by the sentencing analysis. There is competing jurisprudence on the need for a sentencing court to view this material.

I am aware that the Alberta Court of Appeal in R v Hunt , 2002 ABCA 155 , held that such evidence is relevant and, since it constitutes the actus reus of the offence, it should be reviewed by the sentencing judge unless some other exclusionary rule applied (para 16). Hunt was concerned with courts minimizing the gravity of the offence of possession of child pornography and considering it a benign offence .

R v Friesen , 2020 SCC 9 , extinguished this reasoning by establishing a framework for assessing the gravity of all offences of sexual violence against children and the lens through which to assess the moral responsibility of offenders of these crimes. Given the unambiguous commentary in Friesen , and where the Crown agrees that the ASOF adequately captures the full spectrum of the nature and volume of the contraband images, it is not necessary for the court to view these images. The Victim Impact Statements

[ 12 ] The Court received two victim impact statements: from the child’s mother and from the victim, who was 12 years old at the time of her initial contact with Mr. J and 14 years old at the time of the sexual interference offence. [ 13 ] The victim impact statements describe the change in the victim’s presentation after the offence of sexual interference. It describes the mother’s decision to move out of the city in order to remove the child from potential contact with Mr. J. It describes the toll on the child’s mental health after the event, and the family’s fear and anxiety after the event.

They installed a security camera, which the family could ill afford, to ensure advance notice in the event that Mr. J returned to their rural home. [ 14 ] The child’s victim impact statement describes her descent into a deep depression after the sexual interference, and her becoming distant and reclusive. She lost the motivation to do daily tasks and removed herself from contact with all men. She talks about the despair at having her virginity “taken” in this way and how this fact has left a lasting scar on her sense of self. She spoke of the generalized fear she has for her sisters after what happened to her.

Circumstances of the Offender [ 15 ] Mr. J is 23 years old without any previous criminal record. [ 16 ] He entered a guilty plea and he is entitled to the mitigation of that decision for a number of reasons. The guilty plea is an expression of remorse. The guilty plea also provides a level of comfort to the victims of his crime. The victim on the sexual interference, and her family, will not have to undergo the emotionally heavy work of preparing to testify and providing testimony.

He has also saved the justice system the resources that would have been consumed with a trial and has thereby left that court time available to be occupied by other matters. [ 17 ] He enjoys strong family support, and this did not change with these charges or his guilty plea. His mother, youngest sister, girlfriend and his best friend were in court during the sentencing hearing as a show of support. [ 18 ] Mr. J also has the support of his girlfriend. They have been together for approximately one year. She was in court during the sentencing hearing and is fully informed about his offences.

She is studying for her BA in Psychology. She speaks of his potential for reform and rehabilitation, and the work he has put into his counselling sessions. She speaks of his dedication to the caretaking needs of his mother and the impact on his mother were he to be incarcerated. Although Mr. J’s girlfriend recently moved into the family home with him and his mother, she advised the court that she will not continue to live in the family home if Mr. J is sent to jail, and that she has no where else to live.

Further, she advised that the resulting absence of her $400 monthly contribution to the household operation costs would impact the ability of Mr. J’s mother to continue to meet the rental expense for the home. The girlfriend also advised the court that she will assume no obligation to assist Mr. J’s mother with her daily living needs, in the event Mr. J leaves the family home as a result of a jail sentence. The caregiving work Mr. J does for his mother [ 19 ] Mr. J’s mother provided an affidavit on the sentencing hearing and was cross-examined on that affidavit.

She is 52 years old, divorced and on AISH as a result of an autoimmune disorder diagnosed in 2015. She deposed to suffering from Graves disease, vertigo, fibromyalgia, herniated disc in her back, depression, anxiety and panic attacks. L. J. is the youngest of her three children. One of his sisters lives in Newfoundland and the other, 26 years old, apparently cannot assist her mother because she “does not clean up after herself” and spends time out of the city when she is not work. Mr. J has always lived at home and continues to do so.

Her evidence at the sentencing hearing focused on her medical disabilities and the support for daily living that he provides. She deposed to being unable to live without his daily care. She described the lack of any alternate caretaker. She described Mr.

J’s caretaking tasks as including, driving her to appointments, collecting her medications from the pharmacy, grocery shopping, opening her medication containers for her, helping her dress and undress herself, using her hairdryer to dry her hair, meal preparation, carrying hot drinks from the kitchen, standing/sitting with her when she is suffering from vertigo, assisting her with the stairs in her home, assisting her to go into the back yard and setting up a chair for her, tying and untying her winter boots, sitting with her during panic attacks. [ 20 ] She also described his assistance with household tasks that she is unable to attend to such as vacuuming, laundry, cleaning, yard work, taking out the garbage, and other non minor household chores.

She described his work in the home with pet care: walking the dog, cleaning up after the dog and cat and taking the animals to veterinarian appointments. [ 21 ] Despite all this hands-on physical assistance, she is not completely dependent on her son as he has always – and continues – to be employed full time and work outside the house. He has been employed virtually without interruption since he graduated from high school, for several years at a movie theatre outside the home, and more recently as a credit analyst.

So at least during the hours of daily employment, she is able to function without him. [ 22 ] She described his financial contribution given her AISH disability pension. She deposed to being unable to maintain her home and bill payments without his continuing financial support. She deposed and testified that she would not be able to live independently if Mr. J were sent to jail. [ 23 ] Ms. Boisvert argues that the circumstances of Mr. J’s mother, her medical and financial needs, as well as the care (both physical and financial) that Mr.

J has always provided to her should be considered as mitigating factors in sentence, factors that bring an appropriate sentence into the range for which a CSO can be considered. No authorities were provided to support the argument that the circumstances of a family member of an offender can constitute a fact that operates in mitigation of a fit and appropriate sentence. [ 24 ] In R v Bunn , 2000 SCC 9 , the Supreme Court of Canada was prepared to consider the caregiving (both physical and financial) provided by the offender to his wife and teenaged daughter as a mitigating circumstance on sentence.

Bunn was a lawyer who was convicted of breach of trust by unlawfully converting $86,000 of client funds into his own account. Bunn was the sole financial support

for his wife and teenage daughter, and his wife had been confined to a wheelchair for many years. The issue was the distinction between a two-year jail sentence (which was initially imposed) and a two year less a day conditional sentence order (which was imposed on appeal). The Supreme Court found no reason to depart from the CSO imposed by the Appellate Court, in part because the ruin and humiliation that Mr.

Bunn had brought down upon himself and his family, together with the loss of his professional status, could provide sufficient denunciation and deterrence when coupled with a conditional sentence of two years less a day with house arrest. [ 25 ] In the Bunn decision, the Court considered the fact of the impaired health of the offender’s wife was a factor that militated in favour of a two year less one day sentence, which permitted a consideration of a CSO, instead of a two-year sentence, which would not.

The mitigating effect of the fact of the offender’s wife’s health was minimal to the court’s decision of where to land on the range of sentence. [ 26 ] In my view, while the Court used the word “mitigating” to characterize the circumstances of the offender’s wife and daughter, it was equally a personal circumstance of the offender, and not strictly speaking a factor that mitigates a sentence downward. The Court was tasked less with the mathematical calculation of a jail sentence and more concerned with what type of sentence was available: jail versus a conditional sentence order.

The difference between what was imposed initially and what was imposed on appeal was one day of jail. In these circumstances, the Court considered Bunn’s caretaking obligations along with the significant other specific deterrent effects of his loss of reputation and profession, and exercised restraint in deciding that the lessor jail sentence, by one day, was appropriate. As will be discussed below, Mr. J’s situation does not permit a sentence that can be served in the community. Post plea counselling and the forensic risk assessment [ 27 ] Mr. J was arrested on January 23, 2021 and charged with these offences.

He entered a guilty plea on November 18, 2022. On Feb 17, 2023, three months after his guilty plea and over two years after his arrest, he started a course of counselling with a registered psychologist. He has attended 15 sessions in total. The psychologist was given a copy of the forensic risk assessment that was also provided to the court. The psychologist notes Mr.

J to “appear motivated and engaged in the counselling sessions.” She notes he expressed a sincere desire to change and that trauma focused approaches were incorporated into his sessions to help him navigate the impact of the sexual trauma he experienced as a child.

The psychologist further notes that while he “made significant progress during counselling, his treatment remains ongoing, and…he will need to attend frequent and intensive counselling...focusing on his criminogenic needs, mental health and sexual trauma…[and] continued work with a therapist…group treatment for sexual offending… and consultation with a forensic psychiatrist.” [ 28 ] In November 2022, Mr. J retained the services of Hilda Huj, a Registered Clinical and Forensic Psychologist. She was engaged to conduct tests and provide a forensic assessment the focus of which was to “provide insight into Mr.

J’s functioning in the context of the index offences and provide treatment suggestions for any disturbances noted through the assessment as well as other suggestions that would mitigate Mr. J’s risk of reoffending. [ 29 ] Ms. Huj’s information came from the ASOF, a clinical interview with Mr. J, the results of a comprehensive battery of psychological measures conducted on him and a conversation with Mr. M., a long-time friend of Mr. J, who was in attendance during the final sentencing hearing. [ 30 ] Her report indicates that from the age of two, Mr.

J was raised, along with his two older sisters, by his mother after her divorce from his father. His father was emotionally abusive and an alcoholic. Mr. J is estranged from his eldest sister as a result of her molesting him when he was between 3 to 9 years old. He declared that she “raped him” without further articulation. He described not recalling much about the actual abuse, but he did recall having to go to court for it. He recounted that nothing came of the court appearance except that his sister was not permitted back in the family home and she went to live with their father in another province. [ 31 ] Mr.

J described being exposed to emotional neglect by his mother as he was never provided any opportunity to receive emotional help after these allegations came to light. [ 32 ] His adverse childhood experiences included poverty, divorce of his parents, sexual abuse by sister and being exposed to neglect by his mother. [ 33 ] He described teenaged use of alcohol and cannabis to excess, but no addictions were noted, no current substance abuse was reported and there is no suggestion that drugs or alcohol informed either of the index offences. [ 34 ] While Mr.

J’s scores on intellectual functioning placed him in the low average to average range, it appears from the combination of these tests that he has compensated for those areas where his scores were lower, with Ms. Huj concluding that “Overall no clinically significant concerns were noted in Mr. J’s overall intellectual functioning”.

He was described as a good student and able to complete high school on time and has remain employed for years in positions of increasing complexity and responsibility. [ 35 ] His present girlfriend is his first in person romantic relationship, his previous relationships having been exclusively online. He described dating “online” from the age of 13, and only starting to date in person at the age of 18. He described at the age of 14 performing on a webcam for a man online as his most unusual sexual activity. [ 36 ] He acknowledged accessing sexual images of children online from the age of 13.

He describes his present sexual fantasies as not normal, very extreme, a little weird and towards the nature of taboo. Yet when he was asked for particulars, he told the interviewer that “in real legality no one is getting hurt, there is no forced non-consensual sex”. However, he did not elaborate so nothing can be made of his subjective assessment, especially given his conduct in the index offences. In a subjective assessment that betrays a complete lack of empathy or insight, he told Ms.

Huj that he was “not sexually interested in children, and that all his sexual interest in the past were adolescents with strongly pronounced post-secondary features which made them seem like older adolescents”. This is in marked contrast to the nature of the contraband pornography he possessed, images and videos of children between the ages of 4 and 14 years. There is nothing about a 4-year-old that can be described as adolescent. There is nothing about a video of an adult male forcing

his penis in into the mouth of a female child while holding her head and then ejaculating into her mouth and onto her face that can be characterized as “no one getting hurt” and no “forced, non-consensual sex”. [ 37 ] Ms. Huj surmises that his current presentation of sexual preferences is indicative of a disrupted sexual development due to exposure to sexual abuse by a sibling when he was a child. [ 38 ] Much of the information from Mr. J in the forensic assessment is a compilation of complaints that are bald assertions without any external support.

He told the interviewer that he feels he might be autistic as he has researched some of these things he struggles with and concluded he may be autistic. He also told her that he “sees and hears things” and he can see shadows of people that he calls the watchers. He said he has a voice in his head that he calls the Savior. Despite these assertions, it does not appear that he has discussed any of this with his existing family doctor, nor has he sought out therapy in advance of February 2022 in preparation for sentencing.

His emotional disturbances (but for his sexual abuse as a child) are all self-described and untreated. They have also apparently have not prevented his gainful employment since the age of 18, nor do they interfere with the daily caregiving he provides for his mother. [ 39 ] The forensic psychologist expressed caution in relying upon Mr.

J’s self-reported emotional, behavioral and social functioning as his test results “indicated significant validity concerns, indicative of an exaggerated pattern of symptom checking that is inconsistent with accurate self-appraisal and suggesting confusion, disorganization, or actual faking of a mental illness.” The Court is sceptical of his self-reported mental concerns and the results of the assessment tools in this area.

There is no scepticism however in the fact of his childhood sexual victimization by his older sister, and the fact that the forensic psychologist concluded that the psychological maladjustment that resulted from this trauma significantly contributed to his engagement in the index offences. [ 40 ] The forensic assessment contains comments from Mr. J that betray a lack of insight into his offending.

On the s 151 offence, he places responsibility for his actions squarely on the 12-14 year old victim saying, once they met in person “she wanted to hang out”, and “she wanted to do stuff” and “he just did what she wanted without thinking about it.” He said their first meeting was a “spur of the moment” thing, ignoring that he had to travel from his home to the pre-arranged location in the park to meet with the child the first time. This comment also is in contrast to his earlier request of this child to send him intimate pictures of herself and his later comments to her that he “masturbated to these photos”.

These actions are neither impulsive, spontaneous nor victim initiated. [ 41 ] Regarding the s 163.1(4) offence, he said that he started watching pornography as a hypersexualized 13 year old, and since he was a child at that time, his pornography preference was almost exclusively of children adding “when you are a child then, they are just people”. [ 42 ] Again, this betrays a lack of insight into his offending. Some of the contraband images on his phone were of female children as young four years old. These children are not even school aged, and they are just out of infancy.

There is no age equivalency between a 13 year old, in puberty already, and a four year old pre school aged child. This comment was an attempt by Mr. J to minimize his offending behavior and dismiss or ignore the impact on the child victims in the contraband images.

These apologist comments to the forensic psychologist were made on January 21, 2023: after he entered a guilty plea, after the sentencing process began, and when he was 22.5 years old. [ 43 ] During that same interview, he indicated that if was able to go back in time, he would probably change his medication to different ones, leaving the impression that he believes it was the medication that led him to offend as he did. Again, this is an indication that he does not fully grasp the seriousness of both of the offences he committed.

It also gives some indication into his risk to the community – and to children – going forward, as, despite his guilty plea, he has not fully accepted responsibility for his actions. [ 44 ] The psychologist concluded that he “seemed quite reluctant to take full responsibility for the actions in the context of the index offences, as well as provide only general statements about feeling as if he is doing better than he did when they occurred and that he is planning to continue to work on himself so he never again regresses to the state he was in at the time”. These comments echo the Court’s conclusion that Mr.

J continues to pose a risk to children. [ 45 ] Ms. Huj concluded that across various risk assessment tools, he was a moderate risk to reoffend sexually, and his risk for sexual and violent recidivism was low to moderate. She found that his risk for recidivism in the context of child pornography is in the in the median range. Overall, Ms. Huj concluded that Mr.

J poses a statistically average risk of reoffence. [ 46 ] Of note, the risk assessment tools indicated that he had a pedophilic and hebephilic (sexual interest in pubescent children ages 11-14) interests, despite his denial of these interests in the clinical interview. Ms. Huj concludes that his earlier sexual trauma for which he never received treatment, left his sexual development immature and that he requires intensive psychological treatment to address this maladjustment. Analysis [ 47 ] The protection of children is one of the most fundamental values of Canadian society.

Both sexual interference and possession of child pornography are crimes of sexual violence against children. In 2020 in Friesen , the Supreme Court recast the framework to be applied to sentences for crimes of sexual violence against children, noting that sentences must increase in recognition of the gravity of these offences, which are perpetrated against some of the most vulnerable members of our society. [ 48 ] The proportionality assessment must be imbued with an understanding of the wrongfulness of sexual offences against children and the profound harm that they cause.

Courts must impose sentences that are commensurate with the gravity of the sexual offences against children. It is not sufficient for court to simply state that sexual offenses against children are serious. The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their family, caregivers and communities: Friesen , para 76 . [ 49 ] Harm from sexual violence comes in many forms: it violates children’s personal autonomy, bodily integrity, sexual integrity,

dignity and equality. It damages their relationships with their families and caregivers. It has ripple effects and can make their parents, caregivers and family members secondary victims who also suffer profound harm as a result. It destroys children’s trust in people and institutions. It also exposes them to the risk of engaging in sexual violence against children themselves when they reach adulthood.

The harm to children of this conduct is long lasting and profound: Friesen , para 51, 60 and 64 . [ 50 ] The nomenclature “child pornography” is an Orwellian mischaracterization of the subject matter of this offence. Pornography can be benign images that enhance sexual pleasure between and by consenting adults. Children are not sexual beings. The sexualized imagery of children is a weaponization of the most fundamental human expression of intimacy. The effect is to use children’s bodies as an instrument of terror against them, all for the sexual pleasure of adults.

It is a perversion of the highest order and has no place in a civilized society. [ 51 ] The possession of images of children being sexually abused is not a passive crime. The demand for these contraband images fuels the supply which involves the continued sexual abuse of children. Offenders who possess this contraband share in the responsibility for the creation of this material, which perpetuates the victimization of children. [ 52 ] New technologies enable new forms of sexual violence against children and provide sexual offenders with new ways to access children: Friesen , para 47 . This is what happened here.

Mr. J used an online meeting group to gain access to the victim and to convince her to meet with him, despite the fact that as an 18 year at the time, he knew she was 12 years old. Within days of their initial online communication, he was grooming her as his sexual object by convincing her to send him electronic images of her naked body and telling her afterwards that he masturbated to these images. This set the stage for his future abuse of her. The victim’s mother described that the family moved to a small town about an hour outside of Edmonton, in part, as way to distance the child from any contact with Mr. J.

Even though the family moved, the internet allowed for Mr. J’s continued access to the victim, as a year later, they resumed communication and drove to pick her up in his vehicle and eventually committed the offence of sexual interference against her. [ 53 ] The starting point in Alberta for

an act of major sexual interference is 3 years jail: R v Hajar , 2016 ABCA 222 , para 81 . The Court in Hajar established this starting point noting that it did not take into account specific circumstances that could aggravate or mitigate the sentence. The Court of Appeal was clear that a guilty plea operates to mitigate this starting point. [ 54 ] The Supreme Court of Canada in Friesen left the development of starting point sentences to provincial Appellate Courts and endorsed the use of starting point sentences as guideposts to sentencing assessment.

The Supreme Court cautioned that starting points are not fixed sentences to be applied without a fulsome reference to the proportionality analysis. Hajar was decided before Friesen and the admonition by the Supreme Court that sentences for crimes of sexual violence against children must increase: Friesen , para 5 . [ 55 ] The guilty plea is the primary mitigating factor in this case as discussed above. As Defence counsel suggested, it is not an early guilty plea, so the added mitigation that comes with a prompt acknowledgment of guilt is lacking.

While a guilty plea is often mitigating because it demonstrates that an offender has taken responsibility for his criminal actions, in this case, that added mitigation is lacking given the conclusion of the Court, informed by the comments of the forensic psychologist, Mr. J has little insight into his offending and has not taken responsibility for his criminal actions. [ 56 ] All sentences must also take account of the objective of rehabilitation.

The Supreme Court has said that rehabilitation is one of the fundamental moral values that distinguishes Canadian society from the societies of many other nations in the world and helps to impose sentences that are just and appropriate: R v Bissonnette , 2022 SCC 23 , para 48 . In my view, the sentence imposed provides Mr. J with the rehabilitative opportunities that he requires, which, according to Ms. Huj and his counselling psychologist will involve frequent and intensive counseling, group treatment, work with a forensic psychologist and community supervision. [ 57 ]

Section 718.01 CC provides that when a court imposes a sentence for an offence that involved the abuse of a person under eighteen years of age, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. Freisen also confirms that for offences of sexual violence against children, the sentencing objectives of denunciation and deterrence are paramount. [ 58 ] The non-statutory aggravating factors include the degree of physical interference with the victim’s bodily integrity. This was a major act of sexual interference.

On the sexual interference offence, it is also aggravating that within days of initially connecting the victim online, he requested that she create and send to him naked pictures of her sexual anatomy. He knew that she was 12 years old at the time. He convinced her to create and transmit to him, images of child pornography. These were actions he initiated as a mechanism to groom this child for future sexual activity. On the sexual interference offence, it is also aggravating that he pursued the victim, driving to meet with her notwithstanding that she lived in a town approximately an hour away.

He arrived with condoms that he used in the offence. His actions were planned in advance and executed in a deliberate manner. [ 59 ] Defence counsel correctly argues that the sentence must be individualized to take into account the particular circumstances of Mr. J. She points to the evidence from the forensic assessment that he was a victim of major childhood sexual abuse at the hands of his older sister. I agree that his level of moral blameworthiness is informed by this fact. Friesen tells us that one of the reasons why sexual violence against children is so serious is that victims often become perpetrators.

However, Mr. J’s level of moral blameworthiness must also take into account that he has no developmental delay or disabilities, and no mental health concerns that were significant enough to impact his ability to be well employed in positions where he dealt with coworkers and members of the public in a responsible manner. He was also not isolated from family or friends, as his personal situation at the time of the offence included a strong familial bond with his mother, residence with his mother, and he enjoyed a strong long term friendship with Mr.

M. [ 60 ] The Crown argues that the collection of contraband was “not large” and that on the scale of depravity the contraband fell to the mid range. Ms. Boisvert does not disagree with this characterization. The agreement with counsel’s characterization in no way minimizes the offence of possession of this material. The images were not benign.

The images included children as young as 4 years old, posed in ways that they were harming themselves with objects, posed in ways that they were engaged in sexual acts with other children, posed in ways they were being sexually abused by adults and a video of a child being restrained while gross violations of their bodily integrity were perpetrated against them by an adult male. [ 61 ] In a decision a decade before Friesen , the Alberta Court of Appeal stated that the Court must do what it can to protect children

from this exploitative abuse by making it clear to those who choose to ignore the laws on possession of child pornography that this behavior will not be tolerated by society or the courts. Offenders convicted of possession of child pornography can expect to be sentenced to jail and not for terms regarded as inconsequential: R v Andrukonis , 2012 ABCA 148 at para 31 . [ 62 ]

Section 718.2(

c) requires that the principle of totality be applied in all cases where consecutive sentences are imposed. Totality requires the net effect of the consecutive sentences should not be unduly long or harsh. Totality serves both proportionality and the separate sentencing principle of restraint: R v May, 2012 ABCA 213 para 13 . [ 63 ] The sentences imposed are imbued with the totality principle, and the principle of restraint. Were it not for the s 163.1(4) conviction, the sentence on the sexual interference conviction would have been greater than the 3.5 years imposed.

Conclusion [ 64 ] For the offence of sexual interference, s 151 CC , you are sentenced to 3.5 years in jail. For the offence under s 163.1(4), you will serve a jail sentence of 12 months. Pursuant to s 718.3(7)(b), these two sentences will be served consecutively. [ 65 ] The following ancillary orders will also apply. A DNA Order will be provided on both Count 1 and Count 5. A SOIRA Order for 20 years will be imposed on both convictions to run concurrently. All items seized by police will be forfeited to the Crown. Mr.

J is prohibited from communicating with the complainant while he is in custody under s 743.21 CC . For a period of 20 years, Mr. J is bound by a s. 161 order under subsections (a), (b), (

c) and (d). The terms are provided to Mr. J, both counsel and to the Clerk. Finally, on the sexual interference conviction, under s 109(2)(

b) you are prohibited from possessing any restricted firearm, as well as any weapon, firearm, device or ammunition that are classified as prohibited. As well, from 10 years from the date you are released from prison you are prohibited from possessing any other type of firearm, cross bow, restricted weapon, ammunition or explosive substance under s 109(2)(a). The victim fine surcharge is waived given the jail sentence imposed. Heard on the 18 th day of November, 2022, the 4 th day of August, 2023, the 30 th day of October, 2023 and the 27 th day of November, 2023.

Dated at the City of Edmonton, Alberta this 27 th day of November, 2023. S.E. Richardson J.C.K.B.A. Appearances: Clint Clouston For the Crown Danielle Boisvert For the Accused