R v Jose, 2023 ABCJ 186

In the Alberta Court of Justice Citation: R v Jose, 2023 ABCJ 186 Date: 20230821 Docket: 220252654P1 Registry: Lethbridge Between: His Majesty the King - and - Casey Lee Jose Sentencing Judgment of the Honourable Justice E.E. Olsen Introduction [ 1 ] Casey Jose has pled guilty to two charges relating to child pornography. For approximately one year, at home and at work, he possessed and shared images and videos online of children being sexually abused.

His medium-sized collection included numerous real, live children being victimized at a range of ages, including as infants, toddlers, and pre-pubescent girls and boys. That collection included horrific and obviously painful sexual assaults being inflicted on children for the presumed pleasure of the perpetrators and viewers. [ 2 ] Past sentencing cases in this area of criminal law have not properly assessed the gravity of these types of offences.

Now that we know more about the serious and extensive harm these offences cause to victims and communities; now that we know the moral culpability that is required to commit these offences is high; and now that we understand the prevalence of such offences, it is our duty to ensure that sentences for possession and distribution of child pornography reflect the value our communities and society place on the protection of children from wrongful exploitation and harm. Issue [ 3 ] What is a fit and proper sentence? To answer this question, I must consider Mr.

Jose’s timely guilty plea and lack of criminal record, and:

a) his high level of moral blameworthiness;

b) the size and disturbing nature of child pornography files he possessed and distributed;

c) the statutorily aggravating and other aggravating factors; and,

d) the guidance of the Supreme Court of Canda in R v Friesen , 2020 SCC 9 ( Friesen ). Background [ 4 ] The investigation into Casey Jose’s possession and distribution of child pornography started as many such cases start. The United States National Center for Missing and Exploited Children was alerted to the online uploading and distribution of certain child pornography materials. Then, because of the location of the online activity, notification went to law enforcement and the Southern Alberta Internet Child Exploitation unit began investigating Mr. Jose.

Police ultimately executed a warrant on March 16, 2022, at Mr. Jose’s home that led to his arrest and the charges in this case. [ 5 ] In October 2022, Mr. Jose pled guilty to two charges relating to child pornography. One was contrary to s163.1(3) (“distribution”) and the other was contrary to s163.1(4) (“possession”). On that day, an Agreed Statement of Facts (“ASF”) was tendered as an exhibit and placed on the court file. The case was adjourned for a Pre-Sentence Report (“PSR”) to be prepared. [ 6 ] The ASF was read into the record and formally admitted by Mr.

Jose with his counsel, in court on January 17, 2023. By that day, the PSR also had been completed. [ 7 ] Via written submissions, counsel for the Crown sought 2 years’ custody and 18 months’ probation on the distribution count, and 1 year custody to be served concurrently for the possession count.

Defence sought 1 year custody followed by 18 months’ probation on the distribution count, and 6 months’ custody concurrent on the possession count. [ 8 ] Because I raised a concern that the sentences both lawyers were seeking failed to adequately respond to the Supreme Court of Canada’s decision in Friesen , counsel had the opportunity to make additional submissions. Mr. Jose also sought a psychiatric assessment and that was completed on May 17, 2023. Finally, the content of that assessment raised additional issues. Counsel addressed those through written submissions on July 31 and August 7, 2023.

Facts [ 9 ] These facts are taken from the ASF, Exhibit 1. They are meant to summarize and highlight what this case is about. [ 10 ] Mr. Jose’s iPhone 8, seized from his residence, contained 40 unique images of child sexual abuse and 37 unique videos of child sexual abuse. Mr. Jose’s iPhone 13, also seized from his residence, contained 366 unique images of child pornography and 82 unique videos of child pornography. It should be noted that in addition to the many real, live children who were abused in the child pornography seized from Mr.

Jose, he also possessed cartoon, anime, and/or computer-generated images of child pornography. They were the minority of images located. I consider his collection to be medium in size, relative to what is possessed or distributed in other sentencing cases I have read. [ 11 ] Mr. Jose used his electronic devices to possess and distribute child pornography from both his home and his workplace for one year, between March 2021 and March 2022. [ 12 ] During that year, Mr. Jose used several applications (“apps”) on his devices to share or distribute child pornography multiple times (both images and videos).

Those applications included Kik, Snapchat, and Telegram. Mr. Jose uploaded and distributed 125 separate child pornography files (mostly videos), some of them multiple times to private chats and group chats within those apps. [ 13 ] There is no way to know where in the world the children shown in the photos and videos Mr. Jose were abused.

Because of modern technology and the prevalence of child pornography, these children could just as easily have been sexually assaulted here in Lethbridge as halfway around the world. [ 14 ] The portrayed sexual abuse is inflicted on many different children whose identities are unknown. Each child in each image and each video is a victim. Each of these children is re-victimized every time a child pornography file is distributed.

It is probable, not just possible, that each of these children may be victimized for the rest of their lives because these pornographic depictions exist and have been shared with so many people. [ 15 ] The child pornography Mr. Jose possessed and distributed is extremely disturbing. [ 16 ] It featured babies, toddlers, and prepubescent children, both boys and girls, being sexually assaulted.

It included anal, vaginal, and oral penetration; touching; masturbation; inserting foreign objects into children’s orifices (such as a toothbrush into a vagina); fellatio and cunnilingus; and directing children to touch themselves. [ 17 ] This offender’s child sexual abuse material included a toddler screaming in pain while one adult restrained him, and another adult used his penis to penetrate the toddler’s anus. It included another child wincing and grimacing in pain and expressing pain by saying “ow” multiple times.

It included another baby crying while an adult male inserted his penis in the baby’s mouth, and then ejaculated on his face. It included another child being sexually assaulted by two adult men at the same time. It included two children being positioned together to be abused and exposed to the camera. It included a little boy with a soother in his mouth being sexually touched.

[ 18 ] It included a child who appears to have been given drugs so that she could be sexually abused more easily and manipulated by a man wearing a mask, who anally penetrated her numerous times and moved her around their location including onto different pieces of furniture to sexually abuse her again and again. [ 19 ] It included a prepubescent female performing fellatio on an erect adult penis while the children’s animated movie Toy Story played on the television in the background. [ 20 ] Just this

summary of the child pornography Mr. Jose possessed revealed 8 different child victims. Sadly, this is just a selection of what Mr. Jose possessed and shared. I infer that there may be dozens, or even more than 100 different children portrayed in the hundreds of images and videos of child sexual abuse he possessed and shared. The Offender [ 21 ] Ryan Lepko, a probation officer with Lethbridge Community Corrections, completed a Pre-Sentence Report on January 13, 2023. Dr. George Duska with Forensic Assessment and Outpatient Services (FAOS) assessed Mr.

Jose for the purpose of a pre-sentence assessment and risk assessment and prepared his report on May 17, 2023. I take Mr. Jose’s personal circumstances from these reports and from counsel’s submissions. [ 22 ] Mr. Jose is now 33 years old. He had a generally unremarkable upbringing. He was raised in a stable and loving household. He did not experience any abuse. He had many friends and was active in outdoor activities and sports. He completed grade 12. His work history has been stable and consistent. He has had two long-term relationships.

The first was in the process of reconciliation when his partner died due to an accidental overdose; the second ended around the time these criminal charges came to light. He has experienced grief and loss because of a friend’s death by suicide around the time of his first partner’s death. Mr. Jose continues to enjoy the support of his parents, who have attended his court dates with him. [ 23 ] Mr. Jose does not present with any symptoms that would indicate a mental health disorder. [ 24 ] There is no reported or documented history of substance abuse. [ 25 ] Mr.

Jose did not meet the criteria for paraphilic/pedophilic disorder. He adamantly denied experiencing sexual arousal from the child pornography he possessed and shared. [ 26 ] Mr. Jose has neither a criminal record nor prior involvement with the criminal justice system. [ 27 ] Mr. Jose took counselling in the aftermath of being charged, to cope better with the professional and personal consequences of being charged. Such consequences included loss of employment (he accessed the internet to view and distribute child pornography during work hours on work internet connections), and lost relationships.

He has since secured other employment. [ 28 ] To my knowledge, Mr. Jose has not received counselling to address why or how he chose to commit crimes involving the sexual abuse of children, nor has he received counselling to help prevent such decision-making in the future. [ 29 ] To the police, and admitted in the ASF, Mr. Jose described curiosity as his motivation for committing child pornography offences. This is the only explanation for his conduct that is part of the evidence before me. [ 30 ] To Dr. Duska, Mr.

Jose explained that his purpose for possessing and sharing child pornography was to use it as currency. By this, I understand that he exchanged child pornography content that he possessed for adult pornography content he wanted. [ 31 ] To Mr. Lepko, Mr. Jose explained that he was first exposed to child pornography in a chat group about “certain genres of pornography that he accessed”. Thereafter, he began sharing child pornography images and video from one chat group to another chat group. [ 32 ] Neither of these two additional explanations to the report writers are in evidence before me.

I relate them here to show that Mr. Jose has provided different explanations for his criminal conduct to different people. It also provides a proper understanding of how Dr. Duska formed his opinions about risk. I would note that Dr. Duska did not address the inconsistencies of Mr. Jose’s explanations for his role in the sexual assaults of children. [ 33 ] The evidence before me is that Mr. Jose is “remorseful” (ASF, para 13). As well, Mr. Lepko noted that Mr. Jose “understands the impact” his possession and distribution had on the victims. He also noted that Mr. Jose expressed remorse. Four months later, to Dr.

Duska, Mr. Jose also appeared to take responsibility for what he had done. He acknowledged he put himself in this position, and according to Dr. Duska, he is now “developing an understanding that by having this material and sharing it”, he victimized children. I accept that Mr. Jose feels remorse. [ 34 ] Mr. Jose told Dr. Duska that he experienced the content of the child pornography he was exchanging as “outrageous” and even “disgusting”. He admitted to Dr. Duska that he had an “ever-expanding group of people” with whom he was sharing more and more images of child pornography.

These assertions are not in evidence. If they were, they indicate an increasing commercialism to Mr. Jose’s conduct that is highly concerning, over and above the highly concerning aspects to this case. I do not sentence him based on these comments to Dr. Duska. [ 35 ] Instead, the evidence regarding Mr. Jose’s reaction to possessing child sexual abuse materials appears in the ASF in two ways. First, Mr. Jose did not stop possessing and distributing child pornography until the police stopped him.

The last images and videos he created on his iPhone 13 were on March 15, 2022, the day before police executed a warrant. Thus, whatever his reaction to these awful materials was, it did not deter or change his conduct. Second, a feeling of “curiosity” may have explained Mr. Jose possessing one image or video of child sexual abuse. But “curiosity” does not in any way explain how and why Mr. Jose fueled the market for child

pornography by possessing and distributing it for one year. [36] Indeed, I note these latter circumstances to put Mr. Jose’s self-described remorse and motivation to continue offending in theirproper context. [37] Based on the facts and history available to Dr. Duska, he found that Mr. Jose’s risk of reoffence is low and his prognosis,hopeful. I infer that Dr. Duska considered the inconsistencies in Mr. Jose’s reaction to or motivation to engage with child sexual abusematerials in arriving at this opinion. Dr. Duska suggested Mr.

Jose would benefit from sex offender programs available within either theprovincial or federal system. Mr. Jose’s treatment, in whatever form, should focus on him “developing further insight and awareness ofhis own patterns of behaviour and his offending profile”. Range [38] The range of sentences for possessing and/or accessing child pornography can range widely depending on the circumstancesof the offence and the offender.

While there are individual cases in which offenders have received sentences of less than a year, courtshave generally imposed at least a one-year period of incarceration and upwards of 3.5 years if the facts are particularly aggravating.While there are outliers, the range of sentence for possessing and/or accessing child pornography has been between one to three years,with one year being the most common sentence. [39] The range of sentences for distributing child pornography has been higher and typically resulted in consecutive time than forpossession. [40] The usefulness of sentencing decisions that precede Friesen and R v Gerbrandt, 2021 ABCA 346 (Gerbrandt), or precede themost recent legislative amendments, is limited.

We have come to understand more fully the magnitude of the impact such crimes have onchildren (R v Mackie, 2014 ABCA 221 at para 17). [41] The comparator cases offered by counsel for Mr. Jose were several reported cases in this area of sentencing post-Friesen.They are of limited value because in two cases, the offenders had undergone significant rehabilitation. In almost all of them, theoffenders were being sentenced for possession only, not distribution. In one case, the entire large collection was anime or computergenerated, also a distinguishing factor.

Sentencing Principles [42] Our criminal law is a system of values. A denunciatory sentence in a criminal case is one way these values are communicated(R v CAM, 1996 SCC 30 at para 81 (CAM)). Denunciation also refers, in part, to educating the public that the offence in question is a truecrime, not something technical or minor (R v Innes, 2008 ABCA 129 , 2008 ABCA129 at para 10). Denunciation becomes quiteimportant in crimes such as child pornography possession and distribution.

This is especially so because there is a persistent notion thatpossession of child pornography involving the use of technology to view the sexual abuse of children elsewhere in the world is somehowless culpable than abetting the sexual abuse of the same children in person. That proposition has been rejected (R v Andrukonis, 2012ABCA 148 at para 29) by higher courts.

I reject it completely, as well. [43] It has been over 20 years since the Supreme Court recognized that child pornography offences are crimes of enormous gravityfor the victims, their families, and society (R v Sharpe, 2001 SCC 2 at paras 167 and 168 (Sharpe)). Since then, police-reported childpornography incidents have increased exponentially. The SCC described that such offences had more than tripled between 2010-2017. Itis widely understood that the reports understate the occurrence of child pornography offences (Friesen, at para 46).

I infer that suchoffences have continued to increase due to the ever-expanding use of the internet and the difficulty detecting these crimes. [44] Child pornography crimes are sexual offences that victimize children. Put another way, possession of child pornography isitself child sexual abuse (R v Andrukonis, 2012 ABCA 148 at para 29).

Sentencing offenders for sexual offences against children shouldtherefore follow the Friesen framework. [45] Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexualoffences against children in the Criminal Code (Friesen, at para 42). Through recent changes that include increased maximum sentencesand prioritized principles of denunciation and deterrence (s718.01), Parliament has signaled that sexual offences against children shouldreceive higher sentences.

Friesen affirms this approach. [46] Deterrence refers to the imposition of a sanction to discourage both the individual offender and others from engaging incriminal conduct.

In child pornography offences, general deterrence receives considerable weight. [47] Parity is an expression of proportionality, but sentencing must remain an individualized process so that it is not reduced tofinding the most similar offence and offender and mirroring that outcome (Friesen, at para 32; and CAM, at para 92). [48] Restraint is an important sentencing principle, but it is not used to reduce a sentence below what is proportionate. [49] Collateral consequences are part of an offender’s personal circumstances that can reduce a sentence (R v Pham, 2013 SCC 15at para 11; R v Suter, 2018 SCC 34 at para 41).

They may also serve to reduce a sentence when even typical consequences are sufferedmore severely than would be expected (R v Friesen, 2022 ABCA 147 at para 42). [50] Prior good character means relatively little for persons who engage in child sex offences (R v BSM, 2011 ABCA 105 at para16; and R v Arcand, 2010 ABCA 363 at para 136).

Mr. Jose’s Degree of Responsibility [51] Possessing child pornography is morally and legally wrong. Even though he may have recognized how awful the childpornography was that he possessed and shared, Mr. Jose failed to avoid it or stop sharing it. This speaks to great moral culpability. [52] Mr. Jose chose to engage with child pornography where it was obvious that children were being harmed and in which babiesand toddlers were being victimized. These images and videos did not occupy some sort of “grey zone” of questionable content. Theywere stark depictions of sexual violence against defenseless children.

This also emphasizes his great moral culpability. [53] Mr. Jose chose to possess and distribute child pornography for about one year. During this time, he used technology tocultivate a collection of child sexual abuse materials that he watched, saved, organized, and shared. I infer from the ASF that to do so,even with fast, modern technology, meant that Mr. Jose spent a lot of time engaging with child pornography.

Every time he used anelectronic device to engage with child pornography represented his choice to victimize children, children who will be forever scarred.Again, this represents significant moral culpability. [54] Mr. Jose is to be commended for pleading guilty and taking responsibility for his crimes. To me, this signals true remorse andacceptance of responsibility. It suggests that he is amenable to rehabilitation. Gravity of Mr. Jose’s Offences [55] That Mr. Jose’s collection was not larger, or more violent, as some such items sometimes are in the reported cases in this areaof the law, is not mitigating.

At best, it is neutral. [56] The images and videos Mr. Jose possessed and distributed included babies and children crying, drugged, and in obvious pain.This reprehensible content would have been obvious to him, and anyone else who saw it, and yet he chose repeatedly to possess andshare images and videos of children being sexually assaulted. I do not understand that he persisted in this offending behaviour after“curiosity” apparently led him to the first image or video, instead of recoiling in horror afterward and never being part of online childsexual abuse again.

The gravity of this course of conduct cannot be overstated. [57] As much as those who possess and distribute child pornography believe that they are not harming children, they are. Theydirectly fuel the ongoing abuse of children and share responsibility with its creators.

In strong and accurate terms, Justice Molloy inOntario articulated it this way: “…the collectors of this filth are a vital part of the evil menace it represents and bear responsibility for itsmalignant growth right along with its creators” (R v Kwok, (ON SC), [2007] OJ No 457 at para 49). [58] The images and videos of sexual abuse he possessed and distributed victimized many children. The families and communitiesin which those children live are also harmed, in part because these offences occurring signal a failure to protect these children.

The harmto children, families, and communities continues so long as those images and videos remain online, something Mr. Jose ensured wouldhappen when he distributed them. That makes his offences terribly grave. Aggravating and Mitigating Factors [59] The Crown identified the relevant aggravating factors in their written submissions, and I agree that they are:

a) Children were abused (s718.2(a)(ii.1)

b) These types of offences have had and will continue to have a significant impact on child victims (Friesen, para 50; s718.2(a)(iii.1);

c) The children portrayed in the sexual abuse materials possessed and distributed were very young, some less than 2 years old; (R vHewlett, 2012 ABCA 179 at para 24)

d) Mr. Jose’s collection of child sexual abuse materials revealed dozens of different victims; and,

e) The nature or content of Mr. Jose’s child pornography rests at the serious end of the spectrum. [60] Both counsel for Mr. Jose and the Crown have identified several mitigating factors, and I find that they are:

a) Mr. Jose gave a statement to police, a form of cooperation and the start of taking responsibility;

b) Mr. Jose pled guilty in a timely manner;

c) Mr. Jose has been assessed at a low risk to re-offend; and,

d) Mr. Jose expressed what I take to be genuine remorse and a developing understanding of the gravity of his conduct, reflectingreasonable potential for rehabilitation. [61] Some aspects of the circumstances and Mr. Jose’s background are neutral factors, those that neither mitigate nor aggravatesentence. These are general prior good character, lack of criminal record, and the consequences of being charged with these offences. [62] I note that Mr. Jose has suffered collateral consequences to being charged. He has not suffered such consequences moreseverely than others. Thus, there is no basis for using collateral consequences to reduce his sentence.

Rehabilitation [ 63 ] Dr. Duska identified that Mr. Jose is low risk to re-offend. Mr. Jose seemed low risk to offend in the first place, given the many protective factors in his life, including good education, consistent employment, supportive family and friends, absence of substance abuse and mental health issues, among other factors. Many people struggled during the pandemic, as Mr. Jose told Dr. Duska happened with him, leading to his offending behaviour. Whether he was curious or struggling, though, he chose to do harm to others by becoming a part of the online sexual abuse of children.

Thus, there is much to be addressed to prevent risk of re-offending. [ 64 ] Mr. Jose’s potential for rehabilitation does not override the need to remove Mr. Jose from society for a period of time to reflect the sentencing objectives enunciated in the Criminal Code . Sentence [ 65 ] A proportionate sentence must hold Mr. Jose responsible, and it must properly reflect and condemn his role in these offences and the harm they cause to victim, families, and communities ( R v Nasogaluak , 2010 SCC 6 at para 42 ).

As stated previously, the primary sentencing consideration is the denunciation and deterrence of such conduct (s718.01 of the Criminal Code ). [ 66 ] Mr. Jose bears a high degree of responsibility for these gravely serious offences that have caused, and continue to cause terrible harm, and he must be sentenced accordingly. [ 67 ] Mr. Jose has not taken treatment for the individual factors that contributed to his commission of these offences.

His potential for rehabilitation does not justify either a non-custodial sentence on the one offence for which it would be available, or a departure from Parliament’s intentions or the Friesen framework that child pornography sentences be shifted upward. Mr. Jose must be separated from society to protect children, families, and communities.

There is nothing exceptional in his circumstances. [ 68 ] Considering all the sentencing principles and objectives and taking into account the relevant aggravating and mitigating factors (except for the guilty plea), I find a proportionate sentence is 1.5 years in custody for possession (count 1), and 2.5 years in custody for distribution (count 2), consecutive, for a total sentence of 4 years. [ 69 ] However, this total sentence will be reduced to reflect proper credit for guilty pleas and respect for totality, to 3 years, or 36 months. The sentence on count 1 will be 15 months jail.

The sentence on count 2 will be 21 months jail, consecutive. Given that Mr. Jose has no pre-sentence custody to consider, this sentence starts today. I recommend that Mr. Jose serve the sentence in a place that can offer treatment, counselling, and / or programming to address sex offending behaviour against children. [ 70 ] There will be no VFS imposed because Mr. Jose is going into custody. [ 71 ] The prosecution sought several ancillary orders. Counsel for Mr. Jose took no issue with the orders being sought or their terms.

Where discretion exists to issue an order under s161, I note that the potential risk that Mr. Jose poses to children is well documented in the Agreed Statement of Facts. Further, the need to minimize that risk is well justified in the Crown’s sentencing submissions (see paragraphs 21-25) and accepted by counsel for Mr. Jose. Therefore, I direct the following orders on both counts: 1. Forfeiture of an iPhone 13 and an iPhone 8 seized from Mr. Jose during this investigation, that forfeiture occurring pursuant to s164.2 and s490.1(1)(a). 2. DNA , pursuant to s487.051(1). 3.

SOIRA , pursuant to s490.013(2)(b), for 20 years.

Section 161 , for five years, with the following conditions: (

a) You are prohibited from attending a public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre; (

b) You are prohibited from seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; (

c) You are prohibited from having contact, including communicating by any means, with a person who is under the age of 16 years, unless you do so under the supervision of that person’s parent or lawful guardian; and, (

d) You are prohibited from using the Internet or other digital network to communicate with anyone under the age of 18 years. Heard on the 17 th day of January, 2023. Dated at the City of Lethbridge, Alberta this 21 st day of August, 2023.

E.E. Olsen A Justice of the Alberta Court of Justice Appearances: L. Weich for the Crown M. Hlady for the Accused