R v Cook, 2023 ABCJ 258

In the Alberta Court of Justice Citation: R v Cook, 2023 ABCJ 258 Date: 20231128 Docket: 220520118P1 Registry: Calgary Between: His Majesty the King Crown - and - Rory Cook Accused Corrected judgment: A corrigendum was issued on December 4, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. Reasons for Sentence of the Honourable Justice A. J. Brown Sentence [ 1 ] For the offence of possession of child pornography, to which he pled guilty, Mr. Cook is sentenced to serve 18 months, following which he is on probation for 2½ years, or 30 months.

Issue [ 2 ] The main issue in determining a fit and proper sentence for Mr.

Cook is the appropriateness of a conditional sentence (CSO), given, on the one hand, Parliament’s restoration of a CSO as a sentencing option for all but a handful of the most serious crimes, and, on the other, clear Parliamentary and Supreme Court of Canada (in R v Friesen 2020 SCC 9 ) direction to increase sentences in all cases of sexual abuse of children. [ 3 ] In addition, given that a CSO was already an available sentence for child pornography possession, does its wider availability as a clear direction from Parliament to reduce incarceration as a sentence alter appellate direction that a CSO is available only in exceptional cases of child pornography possession? [ 4 ] Crown Counsel argued that no exceptional circumstances supported a CSO in Mr.

Cook’s case and an appropriately denunciatory, deterrence sentence was one of 2 years followed by probation for 2 years, probation serving as rehabilitation of the

offender but also protection of the public. [ 5 ] While agreeing that the offence required a jail sentence, Defence Counsel argued that a CSO of 2 years less one day, followed by a 3-year probation order was the fit sentence for 41-year-old Mr. Cook, a man with no previous criminal record who had pled guilty and engaged in extensive counselling to understand better his offending behaviour.

Authorities Reviewed [ 6 ] In reaching my decision, I have reviewed Friesen from the Supreme Court for the principles of sentencing cases of sexual abuse of children, my own analysis in R v Shah 2023 ABPC 43 of the effect of restoring the availability of the CSO for most offences, and the many comparator cases provided by counsel.

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 Boivin unreported, Action No. 210791513P1, June 30, 2023 (ACJ); R v Brown 2020 SKPC 32 ; R v Bultmann 2022 ABPC 106 ; R v Casey unreported, Action No.220156681P1, April 3, 2023 (ACJ); R v Clayton 2012 ABCA 384 ; R v Downing 2018 ABPC 257 ; R v Dutchession 2021 ONSC 480 ; R v Friesen 2022 ABCA 147 , affg 2021 ABPC 223 ; R v Hammond 2009 ABCA 415 ; R v Jenkins 2021 PESC 6 ; R v King 2020 ABPC 219 ; R v McDowell 2023 ABPC 59 ; R v Rathwell 2021 ABPC 254 ; R v Rozell 2023 ABKB 527 ; R v Scott 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 ; and R v Wright unreported, Action No. 170312331Q1, October 7, 2019 (AQB).

Facts [ 7 ] In January 2022, a detective with the Southern Alberta Internet Child Exploitation (SAICE) began investigating Mr. Cook for possession of child pornography. The investigation continued over several months, during which time, 1115 images and 87 videos of child pornography were downloaded from Mr. Cook’s IP address. On May 31, 2022, the detective and other police officers executed a search warrant at Mr. Cook’s home. [ 8 ] Despite repeated knocking at the door by police officers and the sounds of movement within, there was no response from Mr. Cook.

Tactical squad officers then breached the door, entered and found Mr. Cook walking around his apartment. [ 9 ] The laptop computer, cell phone and USB device seized under the search warrant contained a total of 6227 images and 896 videos of child pornography. The creation dates of the pornography spanned more than three years. A representative sample of images filed as a court exhibit depicts child pornography at the highest of five levels of depravity described in the English Court of Appeal decision, R v Oliver [2002] EWCA Crim 2766, including bondage and bestiality. [ 10 ] After consulting a lawyer, Mr.

Cook was interviewed by the investigating detective, whom he told that he knew he had a longstanding problem with viewing child pornography and always felt horrible about what he was doing but feared seeking help, not wanting to be judged. He had been viewing increasingly intense pornography for some time. Mr. Cook [ 11 ] Mr. Cook is 41 years old and has no previous criminal record. He graduated from high school and has worked in retail sales and independently giving music lessons. Unemployed for two years during the pandemic, he regained sales work in 2022, in a cannabis store, and resumed giving music lessons.

He also moved back in with his parents. [ 12 ] The presentence report and psychiatric presentence report provide differing accounts of Mr. Cook’s childhood and family background. According to the presentence report, he was close to his older brother, had a stable childhood and enjoyed attending school, describing his family as “supportive, caring and loving.” (p. 2, Exhibit S-5) By contrast, in the psychiatric assessment Mr. Cook reports that he was exposed to domestic violence and discord, did not feel loved by his mother who always preferred his brother, and never got along with his brother. [ 13 ] Mr.

Cook’s first exposure to pornography was at age 12, next at 15 and then peaked in his early 20s. Soon, he sought out more extreme pornography and first began viewing child pornography at 30. Over time, the children depicted have been younger and younger and the images increasingly violent and extreme. The psychiatric assessment concluded with a diagnosis of Persistent Depressive Disorder and Pedophilic Disorder.

He is rated a low risk of generalized criminal recidivism, an average risk to reoffend in comparison to others who have been convicted of sexual offences, and an overall low-moderate risk to re-offend. [ 14 ] In June 2023, Mr. Cook began counselling with Steven Harbourne, an expert in therapy related to sexual offending; he completed 14 sessions before sentencing and expresses a desire and willingness to continue therapy. Mr. Harbourne described Mr. Cook as active and engaged in the process. [ 15 ] During the psychiatric assessment, Mr. Cook reported that his sessions with Mr.

Harbourne were helping him reset his interests in females closer to his own age, so that he was now dating women in their late 20s; when asked the timing of his most recent date, though, he answered that it was seven years ago, long before the counselling. [ 16 ] Mr. Cook reported that he was sexually abused once when he was 7, by a 9- or 10-year-old boy. This disclosure was made for the first time after his arrest, in the course of the psychiatric assessment and the counselling sessions. [ 17 ] Awaiting his sentencing hearing, Mr.

Cook continued to watch pornography and still found himself thinking about underage girls, although trying to use new skills to push those thoughts away. Sexual Offences Against Children [ 18 ] In Friesen , the Supreme Court sent “. . . a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families and communities. Sentences for these crimes

must increase.” (para 5) [ 19 ] Although the factual context of Friesen dealt with sexual interference, the Court made clear that the direction to increase sentences extended to all sexual offences against children and reiterated from R v Sharpe 2001 SCC 2 the traumatizing violence of child pornography. (paras 44, 51) Restored Availability of the CSO for Most Offences [ 20 ] With the passage of Bill C-5, a CSO again became a sentencing option for all but the most serious offences, such as terrorism or organized crime.

The Parliamentary Secretary introducing the bill in the House of Commons reaffirmed the intent of the original 1996 amendments that first created the CSO as supporting restorative justice measures and exercising restraint with the objective of reducing the incarceration rate in the country. Reducing Incarceration v. Increasing Sentences for Child Sexual Abuse Crime [ 21 ] Parliamentary intent and Supreme Court jurisprudence are in lockstep in treatment of the competing objectives of reducing incarceration yet increasing sentences for child sexual abuse crime.

My review of 17 post- Friesen comparator cases, in which only five ( Bultmann , Dutchession , Friesen , Jenkins , Scott ) received a CSO leads me to conclude that any apparent tension between the objectives is resolved by reserving the CSO for the exceptional case. Is Mr. Cook’s an Exceptional Case? [ 22 ] I cannot conclude that Mr. Cook is the exceptional case for a CSO. He gave diametrically opposite accounts of his childhood and family to the author of the pre-sentence report and the author of the psychiatric assessment.

He said that he had changed his dating behaviour as a result of his counselling sessions with Mr. Harbourne, yet last dated seven years ago, long before the sessions. He continues to view pornography, adult pornography by his account, and still harbours occasional thoughts of young girls. All these facts give rise to a real concern that Mr. Cook is “faking good” in his engagement with counselling and, therefore, that specific deterrence remains an important sentencing objective, along with general deterrence, denunciation and protection of the public. [ 23 ] The closest comparator cases, post- Friesen, to Mr.

Cook are Rathwell and Tadashore . [ 24 ] Mr. Rathwell pled guilty, was a 52-year-old first offender and had a collection of 12,533 images and 22 videos. He was genuinely remorseful, showed insight, was responsive to and engaged in counselling and rated a low risk to re-offend. He was sentenced to one year and 12 months’ probation. [ 25 ] Mr. Tadashore was a 43-year-old first offender who pled guilty to possessing 2336 images and 99 videos of depictions from categories 1 to 4 on the Oliver scale. His offending behaviour had taken place over a 10-year period. Mr.

Tadashore had good family and community support, was genuinely remorseful, had attended counselling, been terminated from his employment and had to resign a position as director of a private company. He was sentenced to one year and 24 months’ probation. [ 26 ] The aggravating factors in Mr.

Cook’s case are: the number of images and videos; the length of time during which he was viewing the child pornography; the level of depravity of the images, category 5 on the Oliver scale; he is still viewing pornography. [ 27 ] The mitigating factors are: his guilty plea; his remorse, the support of his parents; and, his efforts at rehabilitation, including a willingness to continue therapy. [ 28 ] His overall risk of recidivism is low-moderate. Conclusion [ 29 ] Therefore, having found that Mr.

Cook is not the exceptional case for a CSO, I conclude that the fit sentence for him is one of 18 months followed by 30 months of probation. By comparison with Mr. Tadashore, Mr. Cook’s collection was larger and more depraved. And, his continued engagement with pornography signals the need for lengthier period of probation to follow lengthier imprisonment. Heard on the 13 th day of October, 2023, and the 16 th day of November, 2023. Dated at the City of Calgary, Alberta this 28 th day of November, 2023.

A. J. Brown A Justice of the Alberta Court of Justice Appearances: R. Freiheit, B. Kristensen for the Crown J. Wyman for the Accused Appendix A 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 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 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 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.

King* No 40 1112 images, 79 videos, over 500 child porn stories. None 18 months 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 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 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. 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. _______________________________________________________ Corrigendum of the Reasons for Sentence Of the Honourable Justice A. J. Brown _______________________________________________________ In paragraph 1, “42 months” was changed to “30 months”. In paragraph 29, “42 months” was changed to “30 months”.