R v CS, 2024 ABCJ 12

In the Alberta Court of Justice Citation: R v CS, 2024 ABCJ 12 Date : 20240111 Docket : 220305965Y1 Registry : Edmonton Between: His Majesty the King Crown - and - CS Young Person Restriction on Publication Identification Ban – See the Youth Criminal Justice Act , section 110(1) . No person shall publish the name of a young person or any other information that may identify a young person as having been dealt with under the Youth Criminal Justice Act . NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify KS and SS must not be published, broadcast, or transmitted in any way. Reasons for Sentence of the Honourable Justice J.C. Lloyd Introduction [ 1 ] This matter came before me for sentencing, the Indigenous young person having pled guilty to an offence involving online child pornography. The Crown seeks twenty-four months’ probation and the Defence seeks a twelve month conditional discharge. The Crown and Defence also propose different conditions. For the reasons to follow I impose a fourteen month conditional discharge with terms I will list later in this decision. Facts The Offence

[ 2 ] The young person, C, pled guilty to an offence under

section 163.1(2), being to make, print, publish or possess for the purpose of publishing, child pornography. An agreed statement of facts was filed. C took photographs that included himself and two complainants, aged 7 and 8 years old. The photographs included images of C holding his erect penis in a frame that also included the two complainants.

In one image C’s penis appeared to be, though was not, touching the side of one of the complainant’s head; in another image, C’s penis appeared to be, though was not, touching the bottom of a complainant’s foot; and in another C’s penis appeared to be, though was not, touching the torso of one of the complainants. The images were taken covertly by C. The complainants did not know they were being photographed. The photographs were later uploaded by C to a website police were monitoring for pornography.

C was identified by police through his username and after an investigation, C was arrested. [ 3 ] The complainants confirmed their identity in the photographs by referencing the clothing they were wearing and by details of the room in which the photographs were taken. The complainants were not identifiable as the images included non-distinctive parts of their bodies, being a foot, a torso, and the side of a head. The Offender [ 4 ] C was 15 years old at the time of the offence. He is an Indigenous person and had no criminal record at the time of his guilty plea to this offence.

A psychological assessment and a Gladue report were entered into evidence at the sentencing hearing. Psychological Assessment [ 5 ] The psychological assessment included an IQ test component and concluded that C has an overall IQ in the borderline range, meaning his IQ was quite low when compared to scores expected of most people his age. The assessment also included a personality test.

This test disclosed no mood disorder, depression, or psychosis and found that C is adventurous, is inclined both to risk-taking behavior and impulsivity, has a low self-concept, is likely inclined to frustration, to experience challenges with anger regulation, and to use substances to self-medicate. [ 6 ] The psychological assessment also included some collateral source material from historic child protection files, medical records, and from family member interviews.

The child protection file says that Children Services was involved with the family when C was two due to concerns about domestic violence and substance use by his parents. The file was later closed, and Children Services did not become involved again until it received reports that led to these current charges. [ 7 ] C’s paternal grandmother reported that she was concerned C might be experiencing Fetal Alcohol Spectrum Disorder (FASD).

She said that C’s mother drank and abused substances when she was pregnant with him and said that C seemed to demonstrate some of the common behavioral consequences of FASD: her grandson, she said, had trouble connecting his behavior to its likely consequences and surrounded himself with people whom she described as “bad influences.” The assessment did not include any testing to explore the possible diagnosis of FASD. Gladue Report [ 8 ] A Gladue Report was also entered into evidence. [ 9 ] The report writer interviewed C, his paternal grandmother (his kokum), and his paternal grandfather (his mosom).

C is a member of the Samson Cree Nation. He lived in the community of Maskwacis for most of his life. C was in the care of his mother and father until his father died when he was a toddler and then lived in the care of his mother until she died two years ago. After his mother’s death, C moved to live with his grandparents. He lived first with his mosom in Maskwacis. His mosom struggled with rheumatoid arthritis and was often unable to care for his grandson.

C later moved to his kokum’s home in Edmonton though he prefers to live in Maskwacis because that is home and where most of his friends and family members live. [ 10 ] There is a significant historical connection with colonialism in C’s ancestry. While they never spoke of their past, C knew that his grandmother attended Blue Quills Residential School and that his grandfather attended a day school. These generational effects were also experienced by his parents. C’s father was affiliated with gangs in the community and died when C was a young child. His mother raised him alone after that.

C speaks fondly of his mother and described that she was a good and loving mother to him. He acknowledged that she struggled with addiction later in her life and said that his mother had died about two years ago, tragically having frozen to death. Her body was found at the side of a rural road, and it was reported that she had fled a home after having witnessed a boy being shot. [ 11 ] Both C and his grandparents describe that there was violence, gangs, guns, substance abuse, and criminal activity around in his home community for much of his life.

C gave examples of the realities of his living situation in Maskwacis. He described being in a car with his uncle and that they were fleeing from police in a car he later learned had been stolen. He described a gunfight in the front yard of the home he lived in with his mother and described being evicted from the home as a result. He described that friends and family members had untimely deaths resulting from violence, suicide, and connected to the usage of drugs and alcohol.

His best friend died by suicide about two years ago – around the same time that his mother died. [ 12 ] C attended Montana School in Maskwacis from Kindergarten to Grade 9. After the deaths of his mother and his best friend, when he started living with his grandparents, his school attendance became sporadic. His grandmother said that he was unable to get a ride to the new school and that the school bus stopped picking him up.

He dropped out of school. [ 13 ] When his mother died C first went to live with his mosom who was struggling with rheumatoid arthritis and so required C’s help often and was unable to provide adequate care or supervision for his grandson. C then moved to Edmonton to live with his kokum for a time though as his mosom’s health improved he spent more time living with mosom in Maskwacis. [ 14 ] C described to the report writer that he is in good health. He said that he uses alcohol occasionally and uses marijuana regularly, as do his friends.

C says that he believes in traditional Indigenous culture and ceremonies but that he does not practice them or

participate often. He described attending sweat lodge ceremonies and smudging every night when he stays with his mosom. His mosom,NP, said that he is willing to attend sweat lodge ceremonies with his grandson and believes it might help the child. NP’s health hasimproved recently, and the arthritis is being managed successfully. [15] Both C’s grandparents love him and describe him in loving ways. His kokum describes C as a “good kid” and says he ishelpful and respectful.

His mosom says that C is a quiet and helpful boy and also says that he is “a good kid.” [16] The Gladue report writer identifies the Centrepoint Program as a facility that might be helpful. Centrepoint is located indowntown Edmonton and provides services and programming directed to youth in conflict with the law and who are experiencing mentalhealth problems. The psychological assessment described earlier was completed at Centrepoint. The writer also identifies an EquineTherapy program on the Samson Cree Nation called “Day Walker and Co.” as a resource that might be helpful.

The Day Walker programis run by Patrick Buffalo, an Indigenous man raised on the Samson Indian Reserve in the Maskwacis Territory. Mr. Buffalo attended theErmineskin Indian Residential School in Hobbema, Alberta, and is currently certified as a hypnotherapist and works in the area of Equineand Nature Assisted Therapy using horses and the natural world to help people deal with trauma, particularly with the trauma connectedto the residential schools experience.

C has expressed an interest in this program and a willingness to participate. [17] C’s kokum told the Gladue report writer that while she believed that counselling in general and the Centrepoint facility inparticular might be helpful for her grandson she was concerned that the child might have trouble getting to the Centrepoint offices indowntown Edmonton. His mosom said that he would do his best to make sure that C would get to any appointments in Edmonton.

Law and Analysis [18] Section 38(1) of the Youth Criminal Justice Act, SC 2002, c 1 [YCJA] sets out the purpose of sentencing under the Act: The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through theimposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation andreintegration into society, thereby contributing to the long-term protection of the public. [19] Section 38(2) sets out principles that apply to fashioning a proper sentence. A principle central to sentencing is that ofproportionality. Section 38(2)(

c) says that “the sentence must be proportionate to the seriousness of the offence and the degree ofresponsibility of the young person for that offence.” Seriousness of The Offence [20] There is no question that crimes of sexual exploitation are very serious and no question that such crimes committed againstchildren are even more serious. In the decision of R v Friesen, 2020 SCC 9 [Friesen] the SCC says that harms created by sexual crimesare not limited to physical harm.

Crimes of sexual exploitation can impact the personal autonomy, bodily integrity, sexual integrity, aswell as the dignity and equality interests of children. Further, the offence of child pornography treats children as sexual objects andgravely wounds their dignity (see also R v Sharpe, 2001 SCC 2 [Sharpe]). Online pornography creates a further and deeply serious riskthat images might resurface at any time later in the person’s life and this reality can cause profound harm whether and when such imagesmight emerge again online or otherwise.

Further, crimes of sexual exploitation and pornography can cause harm to relationships betweenvictims and their families and caregivers and to other social relationships in a child’s life. While prosecutors should lead evidence ofharm, direct evidence is not required for a court to find the child suffered actual harm.

Degree of Responsibility of The Offender [21] When assessing the moral culpability of an offender in a sexual offence, a court must bear in mind of the harm caused by theconduct of the offender and mindful that the conduct discloses a deeply troubling attitude toward children (see Friesen). [22] There are other factors relevant to assessing the degree of responsibility of this offender. The YCJA is predicated on apresumption of reduced moral culpability because of the offender’s age.

Cognitive impairment can be another factor that reduces moralculpability (see R v Scofield, 2019 BCCA 3 and Freisen). [23] In R v DB, 2008 SCC 25, at para 62, Justice Abella cites Professor Nick Bala saying that the YCJA is: premised on a recognition that to be a youth is to be in a state of “diminished responsibility” in a moral and intellectual sense.Adolescents, and even more so children, lack a fully developed adult sense of moral judgment. Adolescents also lack the intellectualcapacity to appreciate fully the consequences of their acts.

In many contexts, youth will act without foresight or self-awareness, and theymay lack empathy for those who may be the victims of their wrongful acts. [24] The Indigeneity of an offender also has an impact on moral culpability.

The SCC in R v Gladue, (SCC),[1999] 1 SCR 688 [Gladue] at para 68 says that “many aboriginal people are victims of systemic and direct discrimination, many sufferthe legacy of dislocation, and many are substantially affected by poor social and economic conditions.” In R v Ipeelee, 2012 SCC 13[Ipeelee] the SCC says that: “systemic and background factors may bear on the culpability of the offender to the extent that they shedlight on his or her level of moral blameworthiness” and continues that “[m]any Aboriginal offenders find themselves in situations ofsocial and economic deprivation with a lack of opportunities and limited options for positive development.” (at para 73) Other Considerations Relevant to Indigenous Offenders [25] There are other considerations applicable to Indigenous offenders.

In Gladue, the SCC makes a specific direction forsentencing judges. First, the sentencing judge must always be aware of the role sentencing can play in remedying historic injusticeagainst Indigenous peoples in Canada: It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal

alienation from the criminal justice system. . . What can and must be addressed though, is the limited role that the sentencing judges will play in remedying injustice against aboriginal peoples in Canada. Sentencing judges are among those decisionmakers who have the power to influence the treatment of aboriginal offenders in the justice system.

They determine most directly whether the aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim and community and in preventing future crime (at para 65). [ 26 ] Second, sentencing judges must always be mindful of sentencing options that might be more or less appropriate and effective to the circumstances of the offender before the court “because of his or her particular aboriginal heritage or connections” ( Gladue at para 66 as cited in Ipeelee para 59 ). [ 27 ] When engaging in these analyses, a sentencing judge must be careful to include a consideration of the specific circumstances of Indigenous offenders and must undertake that inquiry within the larger historic context, as set out in Ipeelee at para 60 : To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse, suicide . . . . [ 28 ] To fashion a fit and appropriate sentence for an Indigenous young person I must be mindful of the goals of the YCJA , and I must also give careful consideration to the specific, general, historic, and systemic circumstances of this young Indigenous person so that I can ensure that the sentence is fit and appropriate and is the most effective sentence given this young person’s circumstances and the larger remediative purposes of “restoring a sense of balance to the offender, victim and community and in preventing future crime”.

Application to The Facts of This Case Seriousness of The Offence [ 29 ] Turning to the facts before me in the present case I consider first the gravity of the harm caused. C took pictures of young children, and the images were sexualized when he included in the images his own erect penis. The children in the photographs were objectified, sexualized, and dehumanized. The children were sexually exploited when the images were taken and when they were uploaded to an internet site.

Further, a grave risk was created that these images might persist in the electronic world for a long time, and this can’t help but cause an enduring cloud of fear and uncertainty for the victims. Further, the conduct reveals that a troubling attitude likely rests in the mind of this young person; an attitude that might lead to further crimes and further harm. [ 30 ] The direct and present harm is real, and the potential future harm is foreseeable. Both aspects are likely to cause serious emotional and psychological harm and trauma.

Further, the victims are Indigenous girls, persons particularly vulnerable to sexual exploitation in Canadian society. [ 31 ] In all of the circumstances of the offence, particularly as the victims were not identifiable in the images, as the victims were not made to engage in sexually explicit behavior and were not exposed to the Young Person’s sexualized behavior, I find that the harm done to the victims was on the lower end of the harm spectrum that can be caused by these types of crime. To be clear, there was harm – there is always serious harm that results from crimes of child pornography.

Degree of Responsibility or Moral Culpability [ 32 ] Regarding the degree of responsibility, C was the sole responsible actor. He took the photographs and uploaded them to the internet. As set out earlier, there are other factors relevant to the assessment of C’s moral responsibility for these crimes. [ 33 ] First, under the YCJA , C is presumed to be less morally culpable for this crime by reason of his age. Second, the assessment introduced to evidence discloses that C experiences a significantly low level of cognitive functioning and there is a suggestion that he might have FASD.

These deficits would contribute to an inability for the young person to appreciate the consequences of his actions and so reduce his moral culpability. [ 34 ] Third, the Gladue report discloses the significant history of trauma – both intergenerationally and in C’s own lifetime. C was exposed to drugs, substance use, gangs, criminal behavior, and violence in his young life, he endured the tragic death of his mother and the suicide of his best friend, both deaths premature and unexpected and arising, it seems, from the ravages of intergenerational trauma.

C also lost his father to cancer and family members and friends to unexpected, often violent deaths. There can be no doubt that C has been substantially affected by the trauma and by poor social and economic conditions in his community. These systemic and background factors mitigate C’s moral blameworthiness. What is a Fit and Appropriate Sentence? [ 35 ] The Crown proposes a period of twenty-four months’ probation and says that the nature and the length of its proposed sentence fits the circumstances of the offence and the offender.

The Crown also says that twenty four months was likely necessary for C to receive adequate treatment and counselling at Centre Point given that programs current delays and operating realities.

The Crown also proposes a number of conditions to be imposed on probation. [ 36 ] The Defence proposes that a 12-month conditional discharge is the appropriate sentence in the circumstances and says that the conditions imposed should focus on connecting C to his Indigenous culture and community and should include supports connected to his first nation. [ 37 ] I find that the Crown’s proposal of the twenty four months, being the longest sentence available under the YCJA , is excessive given the seriousness of the offence and the circumstances of the offender.

It is not appropriate for me to determine the length of any

young person’s sentence on the programing challenges faced by support programs. I also find that the sentence length proposed by the defence is inadequate in the circumstances. I sentence C to a period of fourteen months. Further, I find that a sentence of probation is excessive in the circumstances and find that a conditional discharge is appropriate to meet the purposes of the YCJA . [ 38 ] With respect to the conditions, I am mindful that the YCJA directs in s. 38(2) (e.1) that I may impose only such conditions as I am satisfied that a young person will be reasonably able to comply with.

I find that including a condition of assessment, treatment and counselling at Centre Point, as proposed by the Crown, is not appropriate first because a concern was expressed by C’s grandmother that C might be unable to secure transportation to the facility in downtown Edmonton and second because I am concerned that the programing might not be concluded within the fourteen months of the appropriate sentence and so might not meet the objectives of the programing. [ 39 ] Mindful of the SCC directions in Gladue and Ipeelee I find that a fit, appropriate and effective sentence must include conditions that will assist C in his rehabilitation and his reintegration by engaging supports in his home community and that are appropriate to his cultural background.

I was advised that elders in C’s home community are able and willing to assist and learned from the Glaude report that there are local support services available in C’s home community that are sensitive to C’s specific background and circumstances. I find that C’s best chance of rehabilitation and reintegration into society is to connect to his culture and his community, to connect to elders and to local community services sensitive to the specific history of trauma experienced by C and other members of the Samson Cree Nation.

I also find that culturally appropriate conditions are the best way to ameliorate in some small way, “the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system.” [ 40 ] The conditions of this discharge are as follows: a. That C will report to probation within two weeks and thereafter as directed by probation; b. That C will reside with his kokum, CS, his mosum, NP, or in such other residence as approved by probation; c. That C shall have no contact, directly or indirectly with the complainants; d.

That C shall attend with a Samson Cree Nation elder or elders as approved by probation for counselling and direction to include matters of sexual consent and healthy relationships and any other matters as directed by the elder or elders; e.

That C shall perform 30 hours of community service and that community service may be discharged by attendance at the Day Walker Program operated by Patrick Buffalo in or near the Samson Cree Nation or should this program not be reasonably available, then service in relation to Indigenous cultural programs approved by probation and supervised by an elder or elders from the Samson Cree Nation. f. That C will appear before the Court when required to do so. This discharge will be periodically reviewed to ensure that it remains responsive to C’s circumstances.

The first review of this matter will a take place Thursday, April 18, 2024 at 9:30 in courtroom 441; g. That a copy of this decision will be given to the Samson Cree Nation elder or elders referred to in paragraph d. Heard on the 7 th day of November, 2023. Dated at the City of Edmonton, Alberta this 11 th day of January, 2024. J.C. Lloyd A Justice of the Alberta Court of Justice Appearances: P. Johal for the Crown J. Radosh

for the Young Person