R v Rozell, 2023 ABKB 527

Court of King’s Bench of Alberta Citation: R v Rozell, 2023 ABKB 527 Date: 20230919 Docket: 211123765Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Benjamin Rozell Accused _______________________________________________________ Reasons for Decision of the Honourable Justice Peter Michalyshyn _______________________________________________________ Introduction [ 1 ] These are reasons in the sentencing of the offender Benjamin Rozell following his guilty plea to possession of child pornography (CP) contrary to s 163.1(4) of the Criminal Code . [ 2 ] There are two main issues: (

a) does a fit sentence include a Conditional Sentence Order (CSO), or a period of incarceration and if the latter, incarceration for how long; and (

b) should Rozell be exempted from the SOIRA [1] registry? [ 3 ] The defence argues for an 18-month CSO with strict conditions, or alternatively 90 days incarceration to be served

intermittently. The Crown argues for a 12-month sentence of incarceration. The parties agree that a period of probation should be part any sentence I impose. [ 4 ] For reasons which follow, I find that a fit sentence is a period of incarceration of six months, followed by a period of probation of 24 months. Rozell will be exempted from SOIRA registration.

The sentencing record [ 5 ] Agreed facts before the court establish the following: - The offence dates are between December 15 and August 11, 2021 – a roughly 8-month period; - A combination of intentionally and non-intentionally saved images on two phones totaled 451 CP images and 20 CP videos – of which 13 stills and 8 videos were intentionally saved; - On one occasion Rozell used Google hangouts to share links to CP websites – this admitted fact does not support an offence, but rather is part of the circumstances relevant to Rozell’s sentencing; - In addition to certain images exhibited in the sentencing, I viewed a series of five computer files containing CP.

These are some evidence of the nature of the CP in Rozell’s possession. They depict children in various states of anguish, videos involving intercourse and fellatio by the victim or victims; - In addition to the Agreed Statement of Facts, the sentencing record before me includes two character letters, a report of psychologist Dr. Marc Nesca, a letter from psychologist Jessica Blake, and Rozell’s comments to the court toward the end of argument. [ 6 ] Dr. Nesca’s report is relevant to both the sentencing and the SOIRA application. For the sentencing, coming out of Dr.

Nesca’s report: - Rozell was interviewed on October 14, 2022 and administered the Multiphasic Sex Inventory – II. the Hypersexual Behavior Inventory; - Documents reviewed summarized the events leading to Rozell’s guilty plea based on the above, and details of what Dr. Nesca described as various explicit sexual acts, including one featuring a dog.

The victim profile appeared to be primarily females in the age range of 6-12 years; - In interview Rozell was unusually forthcoming and candid; Dr Nesca described a history for online sexual deviance that led to a years-long cycle and in his view was responsible for Rozell’s ongoing involvement with sexual deviant internet activity; - Rozell impressed as genuinely remorseful for his actions and in possession of sound victim empathy; - Rozell’s clinical findings revealed “some lack of insight regarding the emotional underpinnings of deviant sexual behavior and some rationalization”; nevertheless, Dr.

Nesca concluded was more amenable to treatment than an individual with ingrained sexual deviancies such as pedophilia which he ruled out; - Clinically, including with reference to the SVR-20 and a two-step empirically-anchored analysis, Rozell posed a low risk for future CP offences, either in the nature of possession of CP, or for escalation into contact sexual offending; - Dr. Nesca also concluded he was of the opinion that a significant deterrent effect – based on the emotional and financial impact of the arrest – was present in Rozell’s case, which further reduced the likelihood of recidivism.

Principles of sentencing [ 7 ] The applicable principles of sentencing were recently articulated in R v AL , 2023 ABKB 374 , a s 151 case, but with core principles similar to the offence before the court. [ 8 ] The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect of the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives set out in ss 718(

a) to (

f) of the Criminal Code . [ 9 ] The fundamental principle of sentencing as stated in

section 718.1 is that the sentence imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [ 10 ] Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. [ 11 ]

Section 718.2 of the Criminal Code sets out several additional principles that shall be considered by a sentencing judge when crafting a fit sentence. Relevant in particular to this sentencing include that: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, including the statutory aggravating factors of the complainant being under the age of 18, and of being in a position of trust or authority in relation to the complainant

(

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

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

d) All available sanctions, other than imprisonment, which are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders. [ 12 ] In the context of sex-related crimes against children, no one disagrees that R v Friesen , 2020 SCC 9 is the most important authority interpreting ss 718, 718.1 and 718.2 of the Criminal Code . Numerous Alberta trial courts have helpfully summarized the lengthy and detailed reasons in the Friesen case, for example R v DCH , 2020 ABQB 510 , at paras 67-74 .

A more recent example is R v Collins , 2023 ABKB 134 at paras 32-39 . [ 13 ] In addition to this review of Friesen and related cases, I have taken into account the following additional authorities. [ 14 ] With regard to the impact of s 718.01 of the Criminal Code , in R v Germain , 2022 ABCA 257 at paras 70-71 the court noted the sentencing judge’s limited discretion to elevate other sentencing objectives over the primary objectives of denunciation and deterrence.

Nevertheless, the court went on to state: [71] However, even when Parliament has prioritized some sentencing objectives – as with s 718.01 for offences involving the abuse of children – the sentencing judge still has discretion to accord “significant weight” to other objectives, such as rehabilitation: Friesen at para 104.

Even then, sentencing judges are not required to maximize the denunciatory and deterrent effect of sentences, provided that adequate weight is given to those objectives and the sentence is otherwise proportionate. [ 15 ] With regard generally to the important factors of denunciation and deterrence, the court in R v Bissonnette , 2022 SCC 23 stated that deterrence, while important was also in a sense uncertain, and that again generally speaking a proportionate sentence would be one that kept in sight of the principle of rehabilitation in the individual circumstances of the case. [ 16 ] To a similar effect with regard to the uncertain effect of incarceration on deterrence: R v Proulx , 2000 SCC 5 at para 107 .

A fit and proportionate sentence [ 17 ] With the sentencing record and principles of sentencing in mind, it remains to consider what sentence is fit and proportionate in Rozell’s case. [ 18 ] Friesen requires the court to have regard to the following in its understanding of the gravity of the offence (at paras 74-86):

a) the inherent wrongfulness of the offence

b) the potential harm suffered and

c) the actual harm suffered. [ 19 ] No one doubts the inherent wrongfulness of the offence, and of the potential and actual harm suffered by individuals involved in child pornography that is inextricably linked to being in possession of CP. As noted by Justice Tibbitt in R v McDowell , 2023 ABPC 59 at para 22 , under the heading “Possessing child pornography ultimately results in additional child sexual exploitation”: [22] Those who view child sexual exploitation material create a demand for more material. This is consistent with the volume of child pornography in Mr.

McDowell’s collection and collections described in other reported cases. Children are abused to fill this demand. Thus, possession of child pornography increases child sexual abuse. The Alberta Court of Appeal explained this in R v Andrukonis , 2012 ABCA 148 at para 30 : [T]he existence of a market for this material necessarily encourages and enables the continued production of child pornography.

As noted in R v Hammond , supra at para. 10: “The existence of a market for this material is necessarily an inducement to the production and distribution of child pornography by others.” The producers, distributors and users of the child pornography are part of a destructive, often integrated, subculture intent on ruining children for their own perverted purposes. Under the heading “Mr. McDowell’s degree of responsibility”, Justice Tibbitt also notes: [31] Possessing child pornography is simply morally wrong. To fail to be horrified and avoid such material speaks to great moral culpability.

Friesen also requires the court to have regard for the following as significant factors in determining a fit and proportionate sentence (at paras 121-154)

a) The likelihood to re-offend There is little evidence before me that Rozell will re-offend and commit a further possession or indeed contact offence. Indeed, Dr. Nesca’s report and opinion suggests otherwise.

b) Abuse of a position of trust or authority This is not directly relevant.

c) Duration and frequency Here the possession was over a period of eight months. It was not spontaneous; there were any number of opportunities not taken by Rozell to end his misconduct; it only ended upon his arrest following a search of his premises and phones.

d) Age of victim Of course we are dealing with ‘child’ pornography – as noted by Dr. Nesca, the victim profile appears to be primarily females in the age range of 6-12 years.

e) Degree of Physical interference Likewise, and to be noted again in the discussion of aggravating factors, is nature of the CP in Rozell’s possession; it is toward the highest level of the seriousness scale noted in R v Oliver [2002], EWJ 5441, as discussed in cases decided by Justice Stirling of the Alberta Court of Justice, to be discussed further in these reasons.

f) Victim participation There was no direct victim participation, but it important again not to lose sight of the involvement of child victims in the making of the CP possessed by Rozell in this case. Aggravating and mitigating factors [ 20 ]

Section 718.2 (

a) of the Criminal Code requires that a sentencing judge considers all aggravating and mitigating factors of a case when arriving at a fit and proportionate sentence. [ 21 ] I find the following aggravating factors: a. The size of the collection – comparatively small but far from trivial; b. Nature of the recorded child sexual abuse – serious but not the most serious; c. Length of time during which the offence committed – 8 months, certainly not transient and ended only with Rozell’s arrest. [ 22 ] I find the following mitigating factors: a.

That Rozell entered a guilty plea -in the face mind you of strong evidence regarding the offence he pleaded guilty to, if not the offence he was originally charged with; b. That there is genuine remorse on Rozell’s part, as evidenced by his guilty plea, Dr. Nesca’s observations, and Rozell’s own statement to the court; c. Rozell’s own personal circumstances: i. He is relatively youthful – 27 at the time of the offence, now 29; ii. He has ample support in the community as evidenced by his character references, his full-time employment, and the support of his current long-term partner; iii.

The suggestion that if incarcerated Rozell will be at risk of losing his employment, about which however I have really very little concrete information to rely on. [ 23 ] Not mitigating but still relevant as part of the circumstances of the offender is that Rozell has no criminal history. Parity analysis [ 24 ] The principle of parity in s. 718.2(

b) mandates that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. R v Friesen 2022 147 ABCA [ 25 ] The sentencing judge, Justice Stirling of the Alberta Court of Justice, provides a thorough and very helpful review of the prevailing authorities, and identifies a very broad range of 6-18 months incarceration for lower-level CP possession cases.

That range was noted in the ABCA judgment, at para 53, with the further observation that neither of the parties to the appeal questioned the appropriateness of 6-18 month range in the hearing of the appeal. [ 26 ] The facts are of a youthful first-time offender; a comparatively small number of images and videos; possession for a relatively short four-month duration; some history of sexual abuse in his own earlier years; and two expert evidence reports that Friesen had engaged in treatment and needed no further intervention.

The evidence regarding rehabilitation was compelling: the court noted that on the evidence, Friesen had deep insight into the wrongfulness of child pornography; he had taken considerable steps to treat his predilection and “was completely rehabilitated”. The court stated, at para 58:

[58] Complete or near complete rehabilitation at the time of sentencing is unusual. Meaningful rehabilitation is an arduous process that takes sustained effort. It is not common to see it before the courts: R v Black , 2014 ABCA 214 at para 26 .

It was not unreasonable to categorize the respondent’s rehabilitation as exceptional, nor to give it some weight as a consideration against imposing a custodial sentence. [ 27 ] The court also found that Friesen had experienced considerable collateral consequences relevant to the principles of denunciation and deterrence – the loss of his very meaningful music career and the public humiliation. [ 28 ] In my view while the circumstances of the offence are quite similar to those in Rozell’s case, the circumstances of the offender are distinctly different.

They are much more mitigating and exceptional, from the point of view of the CSO which was ordered by Justice Stirling and upheld on appeal. R v Schroeder 2012 ABPC 241 [ 29 ] Defence counsel relies on Schroeder for the alternative cause of a 90-day sentence. Schroeder is of course a pre-SCC Friesen decision and of limited weight – except perhaps as some support for the argument that post-Friesen, Mr. Schroeder’s sentence might look more like a six-month term, rather than 90 days.

I appreciate there are factual similarities between Schroeder and Rozell: Schroeder was older, 40 at the time of the offence, but the possession was of a small number of images over a short period of time. There was expert evidence of low recidivism risk, and no evidence of treatment or counseling before his sentencing. All of that said, Schroeder is also of limited assistance in that the bulk of the case is a discussion of a 21-month CSO for the offence of internet luring; it appears almost incidental that he is also sentenced to 90 days intermittent for possession of child pornography.

There was little if any separate analysis by the sentencing judge for that part of the overall disposition. R v Friesen, 2022 ABPC 129 and R v Friesen, 2022 ABPC 130 [ 30 ] Defence counsel also helpfully provided two additional Friesen cases, also decided by Justice Stirling, which I find highly relevant and persuasive for what I have to decide in Rozell’s case. These are R v Friesen, 2022 ABPC 129 and R v Friesen, 2022 ABPC 130 . In both cases, which involve sibling brothers Daniel and Derek, sentences of six months incarceration were imposed. The facts of the cases are similar but not identical.

The facts included that both Friesen brothers were in possession of a comparatively small collection of CP; the nature of the collections included the first four of the five Oliver categories; the offenders were similar in age to Rozell and each had no record; Daniel was assessed as a low risk to reoffend, whereas Derek was a “low-to-moderate” risk to reoffend; after his very thoughtful consideration of the law, and comparator lower and moderate level cases, Justice Stirling again imposed sentences of six months incarceration and 24 months’ probation.

R v Tadashore , 2022 ABPC 115 [ 31 ] A further and final case coming to my attention is R v Tadashore , 2022 ABPC 115 , yet a further decision of Justice Stirling’s decision in which a 12-month sentence was imposed along with 24 months probation. The facts were of a significantly higher volume of serious CP; a 43-year old offender with no criminal history; no expert evidence; and ample character references and community support.

Justice Stirling again reviewed the authorities extensively, including Justice Fradsham’s decision in R v Rathwell, 2021 ABPC 254 , which is another case similar to Rozell’s, the most notable exception being the much higher volume of CP – a sentence of 12 months was imposed in that case. [ 32 ] This series of six and 12-month cases have been of much assistance in helping me decide whether a 12-month period of incarceration as urged by the Crown in Mr. Rozell’s case would a fit sentence, at least from the point of view of parity.

A fit and proportionate carceral sentence [ 33 ] To this point in the proceedings, I have considered the principles of sentencing, the circumstances of the offence and of the offender, including aggravating and mitigating factors, and I have considered previously-decided cases mindful that to the extent possible Rozell’s sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 34 ] With these considerations in mind, I conclude that a fit and proportionate sentence in Rozell’s case is six months incarceration. [ 35 ] I acknowledge that counsel on Rozell’s behalf argued persuasively in favour of a 90-day sentence, in the alternative to a CSO.

I am not persuaded however that a 90-day sentence is fit and proportionate. There is little support in principle or authority for a 90-day sentence. I am not persuaded that in Rozell’s case there is anything compelling in his own circumstances that justifies a departure from the parity cases – which themselves are collectively an articulation of the primary sentencing goals of deterrence and denunciation, and the moral blameworthiness present in all cases of child pornography. [ 36 ] A six-month sentence is in fact an exercise in considerable restraint.

It is enough of a sentence to send the message of deterrence and denunciation even for this possession sentencing involving a relatively low volume of images and videos yet over a relatively long period of possession. The six months, combined with a lengthy period of 24 months of probation, supports the conclusion that while a meaningful period of incarceration is required here, so too is an attempt to see Mr. Rozell’s rehabilitation continue. Conditional Sentence Order

[ 37 ] I will deal with this aspect of the proceedings briefly. Yet again, in the recent decision of R v AL I canvassed thoroughly the law with regard to CSOs. [ 38 ]

Section 742.1 of the Criminal Code lists four criteria that a court must consider before deciding to impose a conditional sentence. Only the last of those four criteria is relevant here – would a CSO be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 ? [ 39 ] Also canvassed in AL at some length was the threshold question of whether “exceptional circumstances” were necessary before granting a CSO in the context of a sexual offence involving children. I was guided then by the decision in R v Friesen , 2022 ABCA 147 .

The Court of Appeal in Friesen did not state a test that exceptional circumstances will invariably be required to justify a conditional sentence for the crime of possession of child pornography.

It did find however, if only incidentally, that the case on appeal before it was one such example of circumstances that were “exceptional enough” (at para 24) Parts of what made it exceptional were that, as noted earlier in these reasons, Friesen had suffered significant informal sanctions in the community through the loss of his career and his active pursuit of treatment (and completion of it), his insight into the harms of child pornography, and the fact that he suffered public humiliation due to press coverage of his crime resulting in the loss of his music career.

The court also found that the collateral consequences of the Friesen’s crime, in combination with the conditional sentence order, would sufficiently promote the aims of denunciation and deterrence. [ 40 ] Rozell’s circumstances are readily distinguishable.

I am unable to find really anything “exceptional enough” in Rozell’s circumstances to justify departing from the usual outcome in a child pornography sentencing of a period of incarceration. [ 41 ] I am not satisfied in the circumstances here that a conditional sentence would be consistent with the principles of sentencing set out in the Criminal Code in that such an outcome is not proportionate as to the gravity of the offence, which is comparatively low, and the moral blameworthiness of the offender, which is high – even taking into account Dr. Nesca’s observations.

Probation [ 42 ] As noted, the parties agreed that a period of probation should be part of any sentence imposed. The period of probation will be 24 months. It will include the terms as recommended by the Crown, with the exception of paragraphs six, seven and eight regarding aspects of contact with persons under the age of 16. Ancillary orders [ 43 ] Ancillary orders are as follows: 1. Rozell will provide his DNA pursuant to s. 487.051(2) by the end of September, 2023, or at directed; 2. Rozell is prohibited pursuant to s 109 of the Criminal Code ; 3. Rozell will pay a Victim Fine Surcharge of $200; 4.

Rozell will forfeiture two cellphones (one Samsung and one Apple) and a Savage Axis 30/06 rifle 5. Rozell will not be found by an order under s 161 of the Criminal Code . While I am obliged to consider an order of prohibition, having done so I disagree that an order is appropriate in the circumstances, which include the opinion of Dr. Nesca pointing away from any significant concern for possession of CP reoffending or indeed for any escalation into contact sex-related offences.

SOIRA application [ 44 ] With regard finally to the SOIRA application, I have recently dealt with the law regarding SOIRA exemption applications in R v AL , 2023 ABKB 505 . The authorities argued in Mr. Rozell’s case are the same as those in AL . I don’t intend to repeat them unnecessarily in these reasons. [ 45 ] The Crown does not object to my jurisdiction to consider Rozell’s SOIRA exemption application. [ 46 ] I do recognize that in Mr. Rozell’s case the Crown argued an

interpretation of R v Ndhlovu , 2022 SCC 38 that I do not entirely agree with. I had the advantage of having the Crown’s written and indeed oral submissions before me as I deliberated on the outcome in R v AL , 2023 ABKB 505 , which was itself a companion case to R v AL , 2023 ABKB 374 .

I have considered but disagree with for example the Crown’s submission at para 15 of his written submission in the Rozell matter, that based on the two examples discussed in Ndhlovu , that to qualify for an exemption “it must be obvious that an offender’s personal circumstances make it highly improbable that he or she is at an increased risk of sexual recidivism”; I disagree with that formulation at least to the extent that it suggests a test different from what I have found the test to be in in R v AL . [ 47 ] Likewise, I have considered but respectfully disagree with the Crown’s submissions that the category of offenders for whom a s 24(1) Charter exemption is available is as narrow as argued, that is to say, that the exemption applies only to offenders who are over 50 and who have offended against a related female. [ 48 ] I have rejected the contention that expert or statistical evidence is absolutely required in a SOIRA exemption application. [ 49 ] I have considered the Crown’s argument that in the absence of expert of statistical the court cannot take judicial notice of

questions of risk of recidivism or reoffending. However, the application of the test set out in Ndhlovu does not lead to the taking of judicial notice as such – rather, it requires the court to consider the full record before it, which may or may not include expert or statistical evidence, before deciding if the test articulated in Ndhlovu is met in the circumstances of the instant case. [ 50 ] I will reiterate these things: 1.

The law in Ndhlovu requires that the applicant show he is an offender entitled to a s 24(1) remedy on the basis of a breach of his own Charter rights, and evidence that granting an individual remedy would not undermine the purpose of suspending the s 52(1) declaration; 2. Further, he must show that the imposition of the SOIRA order in his particular circumstances is grossly disproportionate or bears no connection to the purpose of assisting police in the prevention and investigation of sex offences; 3. The test for gross disproportionality is stringent; 4.

Most exemption cases appear to hinge on the ‘bears no connection’ part of the test; 5. In considering ‘bears no connection’ it is not absolutely necessary to have expert or statistical evidence before the court; 6. Registration under SOIRA will bear no relation to the purposes of the registration regime – which are to assist police in preventing and investigating sexual offences – if offenders can show they are persons who pose no increased risk of reoffending in the future. 7.

In R v Sulub , 2023 ABKB 431 the court talked about a “presumption” that an offender has the risk profile of an average sex offender – which would not entitle him to an exemption remedy – unless he shows he is not an increased risk of reoffending 8. Factors going to whether an offender is not an increased risk of reoffending include not only the fact of the conviction, but also other factors such as age, unusual or atypical sexual interests, sexual preoccupation, lifestyle instability or poor cognitive problem solving, amongst others.

Further, as noted in Ndhlovu , at para 94 : [94] ...Recidivism risk also varies depending on the pattern of offences: for instance, whether the offence is a non-contact sexual offence, or whether it is committed against a child, a stranger, an acquaintance or a family member. Yet the expert evidence makes clear that valid risk assessments must consider a range of risk relevant variables — there is no single factor that, on its own, yields an offender’s recidivism risk.

In short, many factors affect a sex offender’s recidivism risk. [ 51 ] Like any sentencing matter, the facts in AL were different from those in Mr. Rozell’s case. One similarity however the expert who provided evidence regarding likelihood to reoffend. That expert is Dr. Marc Nesca. Another similarity is the fact Dr. Nesca’s report was in the record before me without objection as to qualifications or admissibility, and without any apparent wish to examine or cross examine him on its contents. [ 52 ] In Rozell Dr.

Nesca’s report describes an individual who is relatively youthful, full-time employed, engaged in a long-term romantic relationship, who has no apparent addictions or mental health issues, and whose psychometric validity scales showed valid responses. [ 53 ] With regard to his acknowledgment of the offence, Dr. Nesca found Rozell “unusually forthcoming and candid”; he found Rozell was genuinely remorseful and had “sound victim empathy”. He expands on the basis for this conclusion at page three of his report [ 54 ] Dr.

Nesca acknowledged a weakness in Rozell’s presentation in that there was some lack of insight regarding the emotional underpinnings of deviant sexual behavior and some rationalization. This weakness however was characteristic, he said, of first offenders. [ 55 ] Dr. Nesca concluded Rozell poses a low risk for future child pornography offences. He approached risk from the point of view of reoffending to possess child pornography, and from the point of view of escalating from this type of offending to contact offending. [ 56 ] While I do not share the Crown’s misgivings for aspects of Dr.

Nesca’s opinions, which I found on the whole to be reasonable and supported by the record, I do appreciate that at pages seven and eight of his report he relies, to some extent, on his belief that the emotional and financial impact of Rozell’s arrest and produced a personal deterrent effect on him. Dr. Nesca fails to expand on this point; it would have been preferable that he did expand on it. Nevertheless, the references to Rozell’s “personal deterrence” impacts at pages seven and eight do not diminish what I take to be an otherwise unimpeached report in every other respect, including the test outcomes.

I conclude that even without much weight attaching to these “personal deterrence” impacts, there is ample evidence in Dr. Nesca’s report to justify his opinions regarding risk and likelihood of reoffending – including what he calls “the observations that (Rozell’

s) profile is unremarkable for the risk factors”. He also goes on at page seven of the report to reply on SVR-20 analysis that confirm Rozell is a low risk to reoffend. [ 57 ] In addition to Dr. Nesca’s report, I have taken into account character references of Violet Boyse and Sharron Barrowsliffe, and, for its quite limited impact, the letter from Blake Psychological Services of May 8, 2023. (Of the Blake report, I share the Crown’s reservations – without wishing to be unduly critical, nevertheless I do not know anything about Ms. Blake’s qualifications, even to be providing support services.

Nor do I know anything about whatever services have been provided as of the time of the letter – which was three visits, which are summarily described. The report really offers no opinion or assessment. It doesn’t speak to whether further visits are planned or recommended.

I disagree that it is plainly any evidence of rehabilitation, other than that Rozell attended upon Ms Blake and told her what she has recounted in her brief five-paragraph letter. [ 58 ] Moving then to the Ndhlovu test, taking into account the record before me, I find no evidence of a grossly disproportionate impact on Rozell from SOIRA registration.

[ 59 ] However, I do find that given his personal characteristics, he falls within the category of offenders who are at no increased risk of reoffending, as that expression is used in Ndhlovu . Obviously, Dr. Nesca’s report contributes to my finding in that regard.

So too however do some of the other factors noted as relevant in Ndhlovu : these include lifestyle stability, no history of or current signs of addictions or mental health issues, the fact the offence was a “non-contact” variety, and that on testing there was little if any concern for escalation to “contact” sex-related reoffending. [ 60 ] As such, just as I found in AL, albeit on a different record, here SOIRA registration would bear no connection to the regime’s purpose of capturing information about Rozell that may assist police prevent and investigate sex offences.

Granting Rozell a s 24(1) Charter remedy would not undermine the purpose of suspending the declaration of invalidity, which was to ensure that those at high-risk of re-offending would be ordered to register as sex offenders. Heard on the 15 th day of June, 2023; delivered orally on the 18 th day of September, 2023 Dated at the City of Edmonton, Alberta this 19 th day of September, 2023. Peter Michalyshyn J.C.K.B.A. Appearances: Craig Krieger for the Crown William van Engen for the Accused