R v Tarleton, 2023 ABCJ 274

In the Alberta Court of Justice Citation: R v Tarleton, 2023 ABCJ 274 Date:20231220 Docket: 220452999P1 Registry: Calgary Between: His Majesty the King Crown - and - Carter James Tarleton Accused Reasons for Sentence of the Honourable Justice A. J. Brown Sentence [ 1 ] For each of the offences to which he pled guilty, possession of child pornography and accessing child pornography, Mr. Tarleton is sentenced to 20 months’ imprisonment, followed by 28 months’ probation; the sentences are concurrent. [ 2 ] Included as ancillary to this sentencing is an order that Mr.

Tarleton comply with the requirements of the Sex Offender Information Registration Act (SOIRA) for a period of 20 years. Issues [ 3 ] Determining a fit and proper sentence for Mr. Tarleton engages the twin Parliamentary and Supreme Court imperatives of reducing incarceration yet increasing sentences in cases of child sexual abuse. [ 4 ] Citing deterrence and denunciation as the paramount sentencing objectives, Crown Counsel argues for a 2-year sentence followed by two years of probation, given the aggravating factors: the depraved nature of the pornography; the length of time during which Mr.

Tarleton had been viewing child pornography (since age 17); that he distributed images via Snapchat; and, his risk to re- offend. [ 5 ] In addition, Crown Counsel opposes a conditional sentence (CSO) as being inconsistent with the fundamental purpose and principles of sentencing and seeks a 20-year SOIRA order. [ 6 ] Taking no issue with the seriousness of Mr.

Tarleton’s offences, Defence Counsel argues that a CSO or 90 days intermittent, followed by a 2-year probation period, is the fit sentence, for a youthful first offender who is remorseful, not a hardened criminal and motivated to undergo treatment. [ 7 ] And, as a consequence of recent amendments to the SOIRA provisions of the Criminal Code , Defence Counsel argues against the SOIRA order on both bases for not imposing it: the lack of connection between making the order and crime prevention or investigation; and the grossly disproportional impact on Mr. Tarleton, when weighed against the public interest.

Authorities Reviewed [8] In reaching my decision, I have reviewed Friesen from the Supreme Court (2020 SCC 9) for the principles of sentencingcases of sexual abuse of children, R v Gejdos 201 ABCA 227 for the distinction between responsibility and post-offence rehabilitationand remorse, my own analysis in R v Shah 2023 ABPC 43 of the effect of restoring the availability of the CSO for most offences, R vBorde (ON CA), [2003] O.J. No. 354 (CA) on sentencing the youthful offender, and the many comparator casesprovided by counsel in this case and in R v Cook 2023 ABCJ 258.

The comparator cases are summarized in Appendix A to this decision;they are: R v Andrukonis 2012 ABCA 148; R v Bartley 2021 ONCJ 360; R v Bekmambetov 2021 ONSC 6219; R v Boivin unreported,Action No. 210791513P1, June 30, 2023 (ACJ); R v Booth 2019 BCPC 160; R v Brown 2020 SKPC 32; R v Bultmann 2022 ABPC106; R v Casey unreported, Action No.220156681P1, April 3, 2023 (ACJ); R v Clayton 2012 ABCA 384; R v Downing 2018 ABPC257; R v Dutchession 2021 ONSC 480; R v Friesen 2022 ABCA 147, affg 2021 ABPC 223; R v Hammond 2009 ABCA 415; R vHarvey-Pike 2018 ABPC 266; R v Inkstetter 2018 ONCA 474; R v Jenkins 2021 PESC 6; R v Jonat 2019 ONSC 1633; R v King 2020ABPC 219; R v Kwok (ON SC), [2007] O.J.

No. 457 (SCJ); R v Mailloux 2019 ABPC 114; R v McDowell 2023ABPC 59; R v Partsch 2018 ONCJ 962; R v Rathwell 2021 ABPC 254; R v Rozell 2023 ABKB 527; R v Rule 2023 ONCA 31; R vScott 2023 ONSC 3023; R v Singh 2021 ABPC 103; R v Shokouh 2023 ONSC 220; R v Stumpf Allen unreported, Action No.201261393Q1, April 4, 2023 (ABKB); R v Tadashore 2022 ABPC 115; R v Winterburn 2019 MBPC 22; R v Woolf 2019 ONCJ 376; Rv Wright unreported, Action No. 170312331Q1, October 7, 2019 (AQB); and R v Zhang 2018 ONCJ 646.

Facts [9] In November 2021, a report from the Snapchat networking application of the uploading and sharing of child pornographyvideos initiated an investigation that led to Mr. Tarleton. During a 6-month period, using numerous accounts, Mr. Tarleton shared 25child pornography videos with other Snapchat users. Some of the children depicted were babies as young as 6 to 18 months, somebetween 4 and 8 years old and the oldest no more than 13.

Children could be heard crying and screaming in pain as the abuse ofteninvolved penetration by an adult man. [10] The culmination of the investigation saw the execution of a search warrant at Mr. Tarleton's home and the seizure of hiscellular ‘phone. The ‘phone contained 25 images and 90 videos of child pornography, as well as seven KIK Messenger conversations inwhich child pornography was traded. Mr. Tarleton [11] Mr. Tarleton is 25 years old. He lives in the long-time family home with his parents and his manager from the gas station atwhich he and his father work.

He left school two credits short of Grade 12 graduation and went to work with his father. [12] His childhood was free of discord and dysfunction, but the family has always struggled financially. Mr. Tarleton’s mothersuffers from depression and is supported by AISH. The family relies on Mr. Tarleton’s contributions and his parents’ ability to affordessentials without him is a source of great worry. [13] After a childhood diagnosis of ADHD, Mr. Tarleton took prescribed medications until he was 17 or 18. Inclined to be sociallyisolated, he immersed himself in the world of video games.

To the author of the psychiatric assessment prepared for the sentencinghearing, Mr. Tarleton reported that he averages four to six hours a day but could easily spend whole days playing video games. [14] First exposed to pornography at 9 years old, he began to download and view child pornography from 17, usually for two tofour hours a day. He was particularly aroused by the children’s sounds of crying or moaning, although he knew what he was doing waslegally and morally wrong. [15] Less than two months before the sentencing hearing, Mr. Tarleton met his girlfriend.

In his psychiatric assessment interview,he reported that the frequency of his masturbating to pornography was greatly reduced once he had a girlfriend. [16] Mr. Tarleton was diagnosed as having Pedophilic Disorder and Internet Gaming Disorder. Overall, he was assessed as amoderate-low risk to re-offend. [17] He is remorseful and desirous of treatment. He enjoys the full support of his parents, his manager and his girlfriend, all ofwhom are fully aware of the offences to which he has pled guilty. Reducing Incarceration v.

Increasing Sentences for ChildSexual Abuse Crime [18] In Friesen, the Supreme Court added its own strong message to the clear direction from Parliament that sentences for allsexual offences against children must increase.

And, from the time of the creation of the CSO in 1996, the Court has spoken in unisonwith Parliament about its intent to reduce incarceration as a sentencing option. (R v Proulx 2000 SCC 5) [19] The passage of Bill C-5 in December 2022 that restored the CSO as an available sentence for all but the most serious offencesonly reaffirmed the drive to reduce incarceration and explore restorative justice initiatives.

[ 20 ] In Cook , I reviewed many child pornography comparator cases and concluded that reconciling the duelling imperatives of reducing incarceration and increasing sentences for child sexual abuse crime is achieved by reserving the CSO for exceptional cases. The additional comparator cases reviewed for this decision have only confirmed that conclusion. Is Mr. Tarleton’s an Exceptional Case? [ 21 ] I do not find Mr. Tarleton’s to be an exceptional case.

The most apt comparator cases, those of youthful first offenders ( Bultmann , Casey , Friesen (ABCA), Kwok , Rozell and Shokouh ) represent a range from a 2-year-less-one-day CSO followed by 2 years’ probation, to varying amounts of jail (6 to 18 months), followed by lengthy probation. Only the two exceptional cases received CSOs and, across the board, the offenders had completed extensive counselling. [ 22 ] It was argued on Mr.

Tarleton’s behalf that his chronic poverty prevented him from engaging in counselling before his sentencing hearing and made him part of a marginalized population for which a CSO is particularly appropriate. I have seen, and granted, release orders for offenders who sought conditions to engage in treatment and counselling while awaiting disposition. This would certainly be a method to gain access to otherwise unaffordable services; Mr. Tarleton did not make this type of application. [ 23 ] Although prohibited on release from using X-Box, Mr.

Tarleton has continued to play video games on his ‘phone, and until recently meeting his girlfriend was still viewing pornography. His girlfriend attended the sentencing hearing and spoke in support of him; of note, she attended in the company of her guardian, a situation that gives rise to concern over her possibly being a vulnerable person. [ 24 ] The diagnosis of Pedophilic Disorder, as yet untreated, is a risk factor to be taken into account when considering whether Mr. Tarleton should serve his sentence in the community. [ 25 ] In sum, the aggravating factors of Mr.

Tarleton’s case are: • The high level of depravity of the images; • The very young age of the children; • The sharing of the videos; • Viewing of child pornography has been going on for eight years; • Continued viewing of pornography while awaiting sentencing; • And, the diagnosis of pedophilic disorder, untreated. [ 26 ] The mitigating factors are: • The guilty plea; • He is a youthful first offender; • His remorse and some insight; • He is motivated to engage in treatment; • And, the support of his parents and employer. [ 27 ] The Cook case bore numerous similarities to that of Mr. Tarleton. Mr.

Cook was not a youthful offender, but he had undergone extensive counselling sessions. The sentence I imposed was 18 months, followed by 30 months’ probation. [ 28 ] Defence Counsel also argued that if a CSO was found not to be a fit sentence, one of 90 days, intermittent, and 2 years’ probation would meet the ends of justice. The three comparator cases advanced in support of that argument, Booth , Woolf and Zhang , were all

summary offences and highly distinguishable from Mr. Tarleton. Conclusion [ 29 ] I have concluded that the fit sentence for Mr. Tarleton is 20 months’ imprisonment, followed by 28 months of probation. [ 30 ] Therefore, the 20-year SOIRA order sought by the Crown is not a mandatory order. Rather, the order must be made unless Mr.

Tarleton has established either that there would be no connection between making the order and the purpose of aiding investigations of sexual offences, or that the impact on him, his privacy or liberty, would be grossly disproportionate to the public interest in protecting society. [ 31 ] Mr. Tarleton has not been able to satisfy the Court on either of those tests. The aggravating features of extremely depraved imagery of very young children being shared establishes a clear connection to the purpose of aiding investigation of sexual offences by requiring Mr. Tarleton to comply with SOIRA reporting requirements.

And, the intrusion on Mr. Tarleton’s privacy or liberty is minimal and fails the “grossly disproportionate” test.

[ 32 ] Mr. Tarleton is required to comply with SOIRA reporting for 20 years. Heard on the 29 th day of June, 2023 and the 20 th day of November, 2023. Dated at the City of Calgary, Alberta this 20 th day of December, 2023. Appearances: J. Rees, KC for the Crown James F. McLeod for the Accused A. J. Brown A Justice of the Alberta Court of Justice Appendix

NAME GP? AGE FACTS RECORD OTHER FACTORS SENTENCE Andrukonis Yes 40 42 unique (246 duplicate) images, 87 unique (117 duplicate) videos. Young children and babies abused, including sadistic sexual abuse. Offender admitting viewing child pornography for 12 to 18 months. None Married with one son, one daughter. Had maintained steady employment. Support from wife and brother. Estranged from son who had discovered the pornography. Sexually abused by a cousin when 8 or 9. Lacked insight. 12 months + 3 years’ probation. Bartley* Yes 36 39 images, 55 videos. Bestiality, bondage, penetration of children and babies.

None Father of a 9-year-old son. Supportive family. Lost long-term employment as a result of the charges. Remorseful. No mental health issues 14 months + 18 months’ probation Bekmambetov* Yes 54 18,370 images, 308 videos, children depicted are particularly young None Immigrant in 2010. Highly intelligent musician. Viewing child pornography for over 5 years. Out of character. Remorseful. Acknowledged harm done. Willing to undergo treatment and counselling. Low risk to re-offend. 2 years Boivin* Yes 73 339 images, 318 videos. Depictions of bestiality. Was trading images online. Took place over 2½ years.

None Low risk of recidivism but lacking in insight. 3 years Booth Yes 71 5 images, one video. Categories 1 – 3 and 5 on the Oliver scale. None Remorseful, otherwise exemplary life, advanced age, health problems, family support, minimal risk, engaged in counselling. 90 days intermittent + 18 months’ probation** Brown* Yes 43 117 unique (585 duplicate) images. Young children, including one toddler. Two images shared via Facebook. None Difficult childhood (father was alcoholic). Physical and mental health problems. Struggled with substance abuse. Remorseful but lacking insight. Mother supportive.

Low risk for general re- offending. One year + 2 years’ probation

Bultmann* Yes 25 – 30, 32 All images and videos were anime or CGI. 30,784 (25,541 unique) images, 642 (515 unique) videos. Very young children depicted, abuse including levels 4 and 5 of Oliver scale. None Arrested at work and lost job immediately, a job that had been hard to come by. Cooperated fully with the investigation. Admitted possessing CP for five years. Subjected to bullying at school, he switched to online schooling. Engaged in extensive counselling soon after arrest.

Therapist described offender as very immature, someone who had “failed to launch” but made excellent progress over the course of the counselling sessions. Pedophilia disorder. Genuinely remorseful. Low risk. Can be managed in the community. 2 year – one day CSO + 3 years’ probation Casey* Yes 29 85 images, 71 of them anime. None Involved in pornography from a young age. Undertaken ongoing rehabilitative treatment. Low risk. Has insight. 9 months + 18 months’ probation Clayton No 30 4600 images. Convicted of possession, accessing and distributing.

Offences occurred over 10-month period, involved very young children, including babies, and levels 4 and 5 on the Oliver scale. None Decorated former British soldier. 3 years Downing Yes 33 1217 images of violent sexual abuse of children, 32 videos of sexual activity between adults and children. The images were being traded. Children were very young, imagery included levels 4 and 5 on the Oliver scale. None Had an interest in CP for 5 or 6 years. Living with his family. Learning disability. Employed several years as a baker. Involved with the church. Support from his family and church community. Limited insight.

Willing to engage in treatment. 3 years Dutchession* Yes 51 7537 images, no videos, some children very young. None Exemplary military service since age 16, including deployment to three combat zones. Genuine remorse, mental health issues being actively treated. 2 year less one day CSO + 2 years’ probation

Friesen* Yes 21 102 images, six videos. Four times shared a total of eight images. Images in Oliver categories 1 – 4. None Difficult upbringing: initially, father had mental health and addiction issues, later, mother. Mother died of an overdose. Friesen was a talented musician, enjoying a successful career in a band; that ended with the publicity attending his court case. Genuinely remorseful, undergone extensive counselling, low risk of re-offending. 2 year less one day CSO + 2 years’ probation Hammond Yes 61 456 images, 106 videos. Broad age range, including young children, brutal sexual violence.

None Longstanding deviant sexual interests, lacked insight, empathy, did not believe needed treatment. 12 months + 3 years’ probation Harvey-Pike Yes 23 979 Category 1 images, 351 Category 1 videos, 201 Category 2 images, 19 Category 2 videos 2015 conviction for sexual interference Full of remorse, on probation at the time, childhood trauma, moderate to high risk, desirous of treatment. 3 years Inksetter Yes 51 133,266 images, 3032 videos. Extreme images including penetration, bestiality and girls between 1 and 16 None Pled guilty to possession and making available. Very low risk.

Genuinely remorseful and insightful. Had participated in therapy for a year. 3 years; 3½ concurrent for making available Jenkins* Yes 60, 63 484 images (354 duplicated), 87 videos (25 duplicated), 70 text files. None Filled with self- loathing but not much insight, nor empathy. Debilitating medical conditions would cause greatly increased pain if incarcerated, due to unavailability of his prescribed pain management in the institution. 18-month CSO + 3 years’ probation Jonat No 54 730 images, 37 videos. Hard core child pornography. Convicted of possession, making, and making available.

None Subject to deportation. 3 years King* No 40 1112 images, 79 videos, over 500 child porn stories. None Support from sister and friends. Lost job as flight attendant as a result of charges. 18 months Kwok Yes, part way into trial 29 2000 images, 60 videos. Very young children depicted, depraved imagery. None Had been viewing child pornography for over 13 years. Remorseful, ashamed. Had had extensive counselling, although none focussed on sexual deviance. One year + 3 years’ probation

Mailloux Yes 32 358 images, 434 videos None at the time Between ages of 2 and 4, sexually assaulted by father. Diagnosed as pedophile. Depraved imagery of young children. 15 months + 2 years’ probation McDowell* Yes 70 30,000 images, 1000 videos, 500 stories. Types of abuse included violence, bestiality and bondage. None Retired P.Eng., married 50 years, accessing child porn for 30 years, history of depressive illness, chronic joint pain, COPD. High risk to re-offend. 4 years Partsch Yes 42 863 images, 5 videos.

Collection labelled and categorized by nature of assault, very young children and infants, depraved imagery. None Mild cerebral palsy. Multiple sclerosis. Lost good, long-term employment as a result. Remorseful, empathetic, committed to treatment, good family support. 19 months + 3 years’ probation Rathwell* Yes 52 12,533 images, 22 videos. None Genuine remorse, responsive to and engaged in counselling, genuine insight, low risk to re-offend. Lost job and wife and children moved away as a result of the charges.

One year + 12 months’ probation Rozell* Yes 27, 29 451 images, 20 videos, including children in anguish, intercourse and fellatio. Forthcoming, candid, genuinely remorseful, empathetic. Low risk. Community support. Employed full-time. 6 months + 24 months’ probation Rule* No 70 22,429 images, 204 videos, very young children undergoing extreme abuse. None Retired schoolteacher who had been viewing child pornography on daily basis for 7 years. Diagnosed hebephiliac. Health problems 22 months Scott* No 76 1550 images (1461 of them, anime), 98 videos (41 of them, anime). Imported CP. None Early and ongoing remorse.

Very positive PSR. Well educated and extremely successful. Fully engaged in counselling. Strong family and community support. Pedophilia but low risk to re-offend. 23-month CSO Singh* Yes 37 19 videos with predominantly newborns to 4-year- olds being sexually assaulted violently, involving penetration and bestiality. None Married with two children, 6 and 3. Foreign national applying for permanent residency. Out of character. Low risk to re-offend. Severe immigration consequences for offender and his family. 6 months less one day + 3 years’ probation

Shokouh* No 19 7 (3 unique) images, 3 videos, depicting young girls suffering penile penetration and bondage. Convicted of accessing, possessing and distributing. None Significant counselling, very low risk to offend. 12 months + 3 years’ probation Stumpf Allen* Yes 54 Transmitted an image. Found in possession of 7 images, children between 6 and 8 being seriously sexually abused. None Highly cooperative with police. Early guilty plea. Significant counselling. Good employment record. Strong family support. Suffers from significant health problems.

Sincerely remorseful. 6 months + 24 months’ probation Tadashore* Yes 43 2336 images, 99 videos. Categories 1 – 4 on Oliver scale. Offending behaviour took place over a 10- year period. None Many letters of support. Had attended counselling, was genuinely remorseful, developing empathy. Employment was terminated and had to resign as a director of a private company. Good family and community support. One year + 24 months’ probation Winterburn Yes 26 99 images, 299 videos. Abuse included penetration by adults, sadism and bestiality.

Offender traded in images None Wretched childhood, suicide attempts, under-employed, unemployed, medium risk to re-offend. 20 months for possession, consecutive to 30 months for distribution. Woolf Yes 66 65 unique, 4 duplicate images, one image depicted child interacting with an adult. None Well-educated artist and art educator. Crime became quickly well known. Placed on leave and took early retirement. Marriage dissolved. Difficult to sell artwork. Suffered panic attacks, anxiety. Completed a 6-week residential sexual addiction program. Very remorseful and ashamed.

Very low risk. 90 days intermittent + one year’s probation.** Wright No 45 182 images, 3 videos. Level 4 on the Oliver scale. Accessed over several years. Young children depicted. None Unremarkable childhood. University degree in finance. Owned construction firm. No insight. Uninterested in counselling. Low risk to re-offend. Supportive family, worried about lack of financial contribution. 16 months for accessing, 12 months concurrent for possession, followed by 2 years’ probation. Zhang Yes 19 7 images, 6 videos, depicting penetration of 7-9-year-old girls None Foreign student, now inadmissible to Canada.

Good support. Otherwise good character. Remorseful, insightful, engaged in therapy. 90 days, intermittent + 18 months’ probation.**

*Post-SCC Friesen **Summary conviction election