R v Collins, 2024 ABCJ 13

In the Alberta Court of Justice Citation: R v Collins, 2024 ABCJ 13 Date: 20240116 Docket: 220117543P1 Registry: Calgary Between: His Majesty the King - and - Austyn Michael Collins Reasons for Sentence of the Honourable Justice P.J. Mason On November 7, 2023, the Court gave an executive

summary of the reasons for sentence and indicated that written reasons would follow shortly. These are those reasons. I apologize for the length of time this took to occur. INTRODUCTION [ 1 ] The Accused, Mr. Collins, was a 24-year-old male with no prior criminal record. He pled guilty to one count of possession of child pornography and one count of making available or distributing child pornography. FACTS [ 2 ] According to the Agreed Statement of Facts, the Accused came to the attention of the authorities through alerts via Google, who notified the National Centre for Missing and Exploited Children (NCMEC).

The Google alerts that identified 89 files of suspected child sexual abuse being uploaded to their platform between September 14 and November 14, 2021. Other alerts were sent NCMEC from Drop Box Inc who identified another 79 child sexual abuse photos uploaded to their system between September 14 and December 13, 2021. Further, another social media service, Kik reported 5 images of child sexual abuse were uploaded and shared during chat messages on December 17-18, 2021. [ 3 ] All of the alerts were forward to the Southern Alberta Internet Child Exploitation (SAICE) unit for follow up investigations.

Those investigations determined that the internet protocol address associated to the uploads were leased by Shaw Communications. Production orders obtained by SAICE showed the IP addresses were under a subscription belonging to an individual living at a residence in NE Calgary. There were three individuals living at that residence. Mr. Collins was one of those individuals. A search warrant was granted for that address and was executed in early February 2022. Mr. Collins conceded that the warrant was valid and lawfully issued.

Further no issues were raised about the execution of that warrant. [ 4 ] Several electronic devices were seized during that warrant. The relevant devices were transported to the SAICE office for a forensic examination. Mr. Collins was arrested, chartered and cautioned. He was given access to counsel. Subsequent to speaking to counsel, Mr. Collins gave a voluntary statement to the police. He admitted to possession of child pornography on his iPad. He denied possessing any child pornography on his phone. He also admitted sharing images with other internet users. He also admitted accessing,

and sharing, child pornography on two other social media sites: Snapchat and Discord. [ 5 ] The forensic examiner found evidence of child pornography offences on two devices EX 001 a Google Pixel 4a cell phone, and EX 010 an Apple iPad 7. Mr. Collins admitted he was the primary or sole user of the two devices. [ 6 ] Those devices contained 586 unique child pornography files. These included 28 images on the cell phone and 442 images and 116 videos on the iPad.

These files were created, or added onto, these devices from July 2015 to February 2022. [ 7 ] The files are images and videos of primarily prepubescent children. Some of the children are believed to be as young as two years old. All types of sexual activity are depicted including penile vaginal penetration, vaginal penetration with sex toys, penile anal penetration, fellatio and cunnilingus. On one end of the spectrum were pictures of children in various stages of undress. On the other end of the spectrum are exceedingly disturbing images.

In one of the videos, there was penile anal penetration by an adult male on an approximately 2-year-old child who was clearly in distress. There was another video with acts bestiality occurring between a female child and a dog. ISSUES [ 8 ] The Crown sought a sentence of two years less a day plus two years' probation. [ 9 ] Crown also submitted that the following ancillary orders were mandated or appropriate: (

a) An Order requiring Collins to provide a sample of his DNA for inclusion into the DNA Databank pursuant to

section 487.051 of the Criminal Code , as both offences are primary designated offences. (

b) An Order requiring Collins to comply with a SOIRA for twenty (20) years pursuant to

section 490.013(2) (

b) of the Criminal Code as both offences are designated offences. (

c) An Order of Forfeiture of all offence-related property pursuant to

section 164.2 and/or

section 490.1 of the Criminal Code . (

d) An Order of Forfeiture of any exhibit containing child pornography, with a direction that the exhibit be returned to the Crown upon expiration of the appeal period to be disposed of as the Attorney General sees fit. [ 10 ] The mandatory minimum sentence for making available for, or distribution of child pornography is 1 year. Counsel for the Accused made a Charter application seeking a finding that the mandatory minimum sentence for making available or distributing child pornography was unconstitutional. If the Court found favor with that application, the Defence then sought a Conditional Sentence Order as a global sentence for both offences. LAW General Principles of Sentencing [ 11 ]

Section 718.1 the Criminal Code (“the Code ”) sets out the fundamental principle for sentencing: “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [ 12 ]

Section 718 of the Code says that the fundamental purpose of sentencing is to contribute, … to the respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: denunciation, deterrence, separation from society where necessary, rehabilitation, reparations and promotions of a sense of responsibility in offenders and an acknowledgment of harm done to victims. [ 13 ]

Section 718.01 stipulates that when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence. [ 14 ]

Section 718.2 requires that a court that imposes a sentence shall take into consideration the aggravating and mitigating circumstances relating to the offence or the offender and specifically listed that where an offender, in committing the offence, abused a person under 18 years of age, that was deemed to be a statutorily aggravating circumstance. [ 15 ]

Section 718.2 also sets out other sentencing principles including the similarity principle, the totality principle, and the restraint principle. ANALYSIS [ 16 ] When determining a fit and proper sentence Courts have been given a substantial amount of guidance about the general principles of sentencing as set out in the Code .

[ 17 ] Justice Lebel in R v Ipelee 2012 SCC 13 para 36-37 : [The Proportionality Principle] … also has a constitutional dimension, in that s. 12 of the Canadian Charter of Rights and Freedoms forbids the imposition of a grossly disproportionate sentence that would outrage society’s standards of decency. In a similar vein, proportionality in sentencing could aptly be described as a principle of fundamental justice under s. 7 of the Charter .

The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code , the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation.

It promotes justice for victims and ensures public confidence in the justice system. [ 18 ] The Supreme Court pointed out the inherently difficult task Judges have in sentencing and the discretion they are afforded in the process in R v Lacasse 2015 SCC 64 : Sentencing remains one of the most delicate stages of the criminal justice process in Canada. Although this task is governed by ss. 718 et seq. of the Criminal Code, R.S.C. 1985, c.

C-46 , and although the objectives set out in those sections guide the courts and are clearly defined, it nonetheless involves, by definition, the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing. [ 19 ] The Supreme Court has only recently signalled a dramatic shift in how Courts should address issues of child sexual offences in R. v.

Friesen, 2020 SCC 9 at paragraph 50-51 To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause. Getting the wrongfulness and harmfulness right is important ... Properly understanding the harmfulness will help bring sentencing law into line with society’s contemporary understanding of the nature and gravity of sexual violence against children and will ensure that past biases and myths do not filter into the sentencing process ...

The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children. This Court recognized the importance of these interests in Sharpe in the context of the production of child pornography. As this Court reasoned, the production of child pornography traumatizes children and violates their autonomy and dignity by treating them as sexual objects, causing harm that may stay with them for their entire lifetime ...

Sexual violence against children is thus wrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity... [ 20 ] And at paragraph 75-76 the Court stated In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle... Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious.

The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers, and communities ... We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children.

Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences. [ 21 ] Finally, at paragraph 100 the Court said To respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences.

As Kasirer J.A. recognized in Rayo in the context of the offence of child luring, Parliament’s view of the increased gravity of the offence as reflected in the increase in maximum sentences should be reflected in [translation] “toughened sanctions” (para. 175; see also Woodward, at para. 58). Sentencing judges and appellate courts need to give effect to Parliament’s clear and repeated signals to increase sentences imposed for these offences. [ 22 ] Friesen must be read in conjunction with the prior sentencing decisions like R v Arcand ABCA 363 at paragraph 57-58 What is meant by “gravity of the offence”?

This concept is directed to what the offender did wrong. It includes two components: (1) the harm or likely harm to the victim; and (2) the harm or likely harm to society and its values. The “degree of responsibility of the offender” as used in s. 718.1 certainly includes the mens rea level of intent, recklessness or wilful blindness associated with the actus reus of the crime committed. For this assessment, courts are able to draw extensively on criminal justice principles. The greater the harm intended or the greater the degree of recklessness or wilful blindness, the greater the moral culpability.

However, the reference in s. 718.1 is not simply to the “ mens rea degree of responsibility of the offender” at the time of commission of the crime. Parliament evidently intended “degree of responsibility of the offender” to include other factors affecting culpability. These might relate, for example, to the offender’s personal circumstances, mental capacity, or motive for committing the crime. Constitutional Challenge [ 23 ] Both counsel agreed that, despite the Defence Brief containing a challenge under both a

section 7 and

section 12 argument, the

section 7 ground was not sustainable, and

section 12 was the only remaining ground for the Charter argument.

[ 24 ] It should be noted that provincial courts do not have the inherent jurisdiction to declare a

section of the Criminal Code as unconstitutional; however, if our courts find that the impugned

section does fall foul of the constitutional protection afforded to the Accused, they make take the appropriate remedial steps in sentencing.

Such is the remedy sought here. [ 25 ] The Supreme Court in the recent cases of R. v Hills 2023 SCC 2 and R. v Hilback 2023 SCC 3 indicated that such a challenge needed a two-stage analysis. [ 26 ] The first stage was to determine a fit and proper sentence for the particular offender having regard for the principles of sentencing in the Code . [ 27 ] When assessing the gravity of the offence and the degree of responsibility of the offender, the Court was satisfied that a fit and proper sentence was in the one-year range. [ 28 ] The gravity of the offence was high.

The sharing of child pornography between individuals online has had enormous impacts on society. It has left a wake of tragedy of its own, that seems to be without end at this point. The viewing of child pornography would be at the lowest end of the gravity of such offences. The making of child pornography would be a substantial increase in the gravity of the offence. The distribution of such images must be at the highest end of such activity. [ 29 ]

Section 718.01 required the Court to consider denunciation and deterrence as the primary sentencing objective.

Section 718.2(a)(ii.2) required the Court to consider the offences against children under the age of 18 as a statutorily aggravating feature of the offence. [ 30 ] Friesen and many of the other cases before this Court have shown that higher sentences must be imposed on sexual offences against children. Possession, creation, and distribution of child pornography are sexual offences against children. [ 31 ] The degree of responsibility of the offender was high. The Agreed Statement of Facts showed that this was a calculated and long-term activity.

Although the collection was not overly large, it contained some of the most graphic and shocking material this Court has had to review in its personal history. The only mitigating circumstance was the early entry of pleas well before trial. However, the overwhelming strength of the Crown’s case would necessarily undercut some of the credit accrued for that circumstance. [ 32 ] The absence of a criminal record was the absence of an aggravating factor. [ 33 ] The Accused had an unfortunate and traumatic upbringing, and he struggled with socialization in his adolescent and early adulthood.

However, his explanation that he ventured into the area of child pornography seeking a connection with a social group defied logic and rationality. There were many other communities that could offer far more to the Accused than this toxic and destructive community whose conduct creates devastating social impacts with which general society has struggled to cope. [ 34 ] Further, until his address to the Court at the sentencing hearing, there was little indication that he had had any real insight to the nature and consequences of his offending on the victims of child pornography. The Court did accept that Mr.

Collins had genuine remorse, but it was clear that much of that remorse was focused on the implications for Mr. Collins himself rather than for the offending conduct. There was some progress here, but not nearly enough to significantly alter the sentence to be imposed. [ 35 ] The reasonable hypothetical proposed was of a person who took a picture of an underage person with the necessary characteristics of child pornography on a cellphone and showing that picture to another person on the phone itself.

In my view, this type of factual construct would be unlikely to occur as an offence of distribution (although it might meet the technical criteria for the charge) but rather would be charged as the making of child pornography. The difficulties in proving the charge of distribution in that factual construct would be significant.

This particular hypothetical would be too remote. [ 36 ] The second stage was to determine if the mandatory minimum that was grossly disproportionate, not merely excessive, compared to the fit and proportionate sentence. [ 37 ] There were three groups of factors to consider went assessing whether the difference between the proportionate sentence and the mandatory minimum sentence is grossly disproportionate:

a) The scope and reach of the offence.

b) The effects of the penalty on the offender

c) The penalty itself, including the balance struck by its objective. [ 38 ] The scope and reach of the offence of distribution of child pornography was almost incalculable. Once a picture or video has been released to the internet the reach would be worldwide. The degradation and humiliation of the child victim was potentially available to anyone on the planet with an electronic device. It could be viewed or played over and over again without end.

For a victim of such an offence the magnitude of the harm was staggering. [ 39 ] The effect of the proposed penalty on the offender would be significant but not unusual for offences of this kind. It would amount to an almost complete loss of liberty for a substantial part of the one-year penalty imposed.

Once released, the accused would be subject to a significant period of monitoring in the community and of course the criminal record would follow him for the rest of his days. [ 40 ] The penalty itself must balance the objectives of denunciation and deterrence, separation from society where necessary, reparations, acknowledgment of harms done and promotion of responsibility in offenders against rehabilitation and the other restraint principles incorporated in the Code . Given the guidance given by the SCC in Friesen , it is clear that trial courts must focus on the harm

done to children by these offences and have, as the primary sentencing objective, denunciation and deterrence [ 41 ] There were two offences here. Simple possession of child pornography and distribution of child pornography were charges that should would attract consecutive sentences. [ 42 ] Given that the range of sentences in the cases put before this Court were, for the most part, in the 1-year range and upwards it was difficult to find fault with the proposed sentence by the Crown. The sentencing range, given the duration of time Mr.

Collins collected the images and made them available to others, must surely be proportionate to the gravity of the offence. [ 43 ] Further, Mr. Collins’ degree of responsibility, as set out above, was high. His background and specific pathology was not such that a conditional sentence would have been available, necessarily, but for the mandatory minimum sentence for the distribution offence.

Again, the sentence requested by the Crown was proportionate based on these factors. [ 44 ] It was noted by the Court that mandatory minimum sentences for possession and creation of child pornography have been found to be unconstitutional pursuant to

section 12 . However, in all the circumstances here the Court was not satisfied that the mandatory minimum penalty for distribution was excessive, let alone grossly disproportionate, such that it violated s. 12 of the Charter . [ 45 ] Accordingly, the Court sentenced Mr. Collins to a global period of incarceration of 2 years less a day followed by two years of probation. The possession of the material would see something close to a one-year jail sentence.

The distribution of the material demanded a sentence in excess of 1 year but when looking at the totality of the sentence, the Court was satisfied that the highest end of the provincial custodial regime was appropriate because it also allowed for the additional two-year period of supervision which would assist in the rehabilitation or Mr. Collins in the long run. [ 46 ] The SOIRA order was to be for 20 years. [ 47 ] The DNA order was to be executed in custody. [ 48 ] The Forfeiture orders for the offence related property and the exhibits as sought by the Crown were granted. Heard on the 7 th day of November 2023.

Dated at the City of Calgary, Alberta this 16th day of January 2024. P.J. Mason A Justice of the Alberta Court of Justice Appearances: Carolyn Ayre for the Crown David Roper for the Accused