R v Viau, 2023 ABKB 646

Court of King’s Bench of Alberta Citation: R v Viau, 2023 ABKB 646 Date: 2023-11-16 Dockets: 220773303Q1 and 220462121Q1 Registry: Edmonton Between: His Majesty the King Respondent - and - Chase Phillipe Viau Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the complainant must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Sentencing Endorsement of J.S. Little _______________________________________________________

[ 1 ] I gave this sentencing decision orally, on November 9, 2023 but advised counsel that I intended to reduce it to a written endorsement with any necessary grammatical changes and proper citations. I. Introduction [ 2 ] On the first day of a four-week trial scheduled to begin September 6, 2022, Mr. Viau pled guilty to six counts of luring, child pornography, sexual interference, and breach of a no-contact condition. [ 3 ] Specifically, he pled guilty to the following counts from indictment 22077303: 1. Count 1:

Section 172.1(1)(B): Communicating with a person who he believed was under 16 for the purpose of facilitating an offence under

section 151. 2. Count 2:

Section 163.1(4): Between September 1, 2020 and March 3, 2021, possession of child pornography. 3. Count 5:

Section 172.1(1)(

B) Between September 1, 2020 and March 3, 2021, making sexually explicit material available to a person under 16 for the purpose of communicating with that person to facilitate a sexual offence. 4. Count 7:

Section 151: Between September 1, 2020 and March 3, 2021, sexual interference. 5. Count 10:

Section 172.1(1)(A): Between November 1, 2021 and December 22, 2021, luring. 6. Count 11: Section 145(5)(A): Between November 1, 2021 and December 22, 2021, having contact with a person with whom he was ordered not to have contact. [ 4 ] It was a tortuous road to the September 5, 2023 sentencing hearing. The delay was caused largely by the parties’ anticipating that Mr. Viau would also enter pleas from indictment 220462121, which he has now done. [ 5 ] That is a 16-count indictment alleging substantially similar offences during a similar timeframe. From that indictment, he pled guilty to two counts of luring: Count 1:

Section 172.2(1)(A): Between August 16, 2021 and March 3, 2021, communicating with a person who he believed was under 18 for the purpose of facilitating a sexual offence. Count 2:

Section 172.1(1)(B): Between the same dates, communicating with a person who he believed was under 16 for the purpose of facilitating a sexual offence. II. Facts [ 6 ] Counsel entered an Agreed Statement of Facts with respect to the first set of charges. Without minimizing those facts, they can be summarized by stating that, at a time when Mr. Viau had finished a custodial sentence for a sexual interference conviction and was still bound by a probation order, he started communicating with the complainant by Snapchat.

She was then 14, and he was 22. [ 7 ] The relationship progressed to in-person meetings and sexual activities proposed by Mr. Viau, including unprotected penile- vaginal and penile-oral sex. Between September, 2020 and February, 2021, there were an estimated twenty such encounters, together with nude photos sent by the complainant to Mr. Viau at his request. [ 8 ] The complainant’s mother discovered these messages and contacted the police in December, 2020. The relationship continued, however, after it was reported to the police.

Their investigation then involved setting up an undercover personna of a 14-year- old girl and contacting Mr. Viau through his Snapchat handle. He acknowledged that he knew that 16 was the age of consent. [ 9 ] Mr. Viau was released on bail and began contacting the complainant again, in breach of a condition not to do so, and requesting that they meet for sex.

Though that did not happen, videos of the complainant that meet the definition of child pornography were found on his phone. [ 10 ] With respect to the second set of charges to which guilty pleas were entered at the hearing, a second Agreed Statement of Facts confirms that Mr. Viau corresponded with six different girls, all of whom told him that they were between the ages of 14 and 16. In each case, he offered money or weed or alcohol in exchange for sex or nude photos. The communications were of varying duration and lengths.

In the last case, the communication was over a considerable period and ran to 822 pages of messages. III. Personal Circumstances of the Offender [ 11 ] I have the benefit first of a Pre-Sentence Report (PSR) prepared for the sentencing scheduled for January of this year. Mr. Viau is now 25 years old. He was adopted as an infant into what may be described as a typical middle-class family near Edmonton. There is no history of his being abused or abusing others within his family.

[ 12 ] His adoptive parents advised that they had difficulty with him throughout his youth – he was hyperactive and compulsive. They received some support for his ADHD and Tourette’s diagnoses until he was 18, when those supports stopped. [ 13 ] He had a part time job as a labourer at a golf course during his schooling and completed high school in 2017. He was not offered a full-time position there because of his poor work habits. He has had spotty employment since graduation: valet parking and baggage handling at the airport. [ 14 ] The author of the PSR refers to Mr.

Viau taking responsibility for his actions and acknowledging that they were wrong, though he cannot explain why he re-offended after his first conviction. [ 15 ] His parents attended the sentencing hearing and confirmed their ongoing support for their son regardless of its outcome. [ 16 ] He did complete a large number of Norquest College and other self-study courses during his time in custody, details of which Mr. Morin provided to the Court. IV. Treatment Required and its Availability [ 17 ] Psychologist Roger Ogden conducted a risk assessment in 2021 at Mr. Morin’s request.

He reported cognitive deficiencies and mental disorders and the lack of support as an adult as delaying Mr. Viau’s development of executive functions. [ 18 ] Dr. Ennis is a psychologist who deals with violent offenders including sexual offenders. He prepared a further risk assessment report dated December 26, 2022 at Mr. Morin’s request and testified at the hearing. He found that Mr. Viau has been diagnosed with ADHD, for which he is being treated, OCD, and Tourette’s syndrome which is not currently presenting. He explained that none of these conditions was causative of Mr. Viau’s criminal behaviour.

He found his risk to re-offend as being well above average and that a relatively high intensity program and supervision in a secure institution were required to mitigate that risk. He did not recommend a FACS program because it does not involve his living in a secure institution. He likened that to treating alcoholism in an environment filled with liquor stores. [ 19 ] There is reference in Dr. Ennis’s report as well to Mr.

Viau’s heavy reliance on social media, which of course plays a role in these convictions. [ 20 ] He explained that treatment was available in both provincial and federal institutions and that it is roughly the same program – just more intense in a provincial institution because it must be administered in under two years. [ 21 ] Dr. Cynthia Baxter testified as well. She is a forensic psychiatrist who is one of the founders of what is called the Rocky Mountain program for sexual offenders, available in provincial institutions. She was of the view that Mr. Viau would qualify for her program based on Dr.

Ennis’s report. V. Victim Impact Statements [ 22 ] The complainant in the first set of charges and her mother read their Victim Impact statements. [ 23 ] The complainant is an Indigenous girl, now 17 years old. Her statement included that, as a result of her treatment by Mr. Viau, she felt unworthy. She turned to drugs and alcohol. She self-harms and has attempted suicide a number of times.

She has trouble with relationships and no longer attends school. [ 24 ] Her mother, who first discovered the Snapchat messages and reported the situation to the police, stated that she had found her daughter during one or more suicide attempts. Her own physical health has been affected, in addition to her psychological well-being, in seeing what her daughter is going through. VI. Counsels’ Positions [ 25 ] Mr. Morin argues that the court should exercise restraint and find a way to sentence Mr. Viau to a provincial institution where he can participate in Dr. Baxter’s program. [ 26 ] The Crown, through Ms.

Corabian, argues that a global sentence in low double digits is warranted given the heinous nature of the offences and their effect on the complainant and her family. [ 27 ] Both acknowledge that Mr. Viau is entitled to significant credit for his pre-trial custody. They disagree on how that credit should be reflected. VII.

Purpose and Principles of Sentencing [ 28 ] The fundamental principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 29 ] The purpose of sentencing is to protect society and contribute to respect for the law by imposing just sanctions that meet the objectives set out in

section 718.

[ 30 ] Of those objectives, deterrence and denunciation are at the forefront for sexual offences. The SCC in Friesen , 2020 SCC 9 reminded us that in sentencing for sexual offences against children, we must recognize the serious physical and psychological harm caused to children by such offences. [ 31 ] Further, s 718.04 of the Criminal Code requires that I give primary consideration to denunciation and deterrence in sentencing for offences committed against vulnerable people, including a female Indigenous complainant. [ 32 ] Mr.

Morin reminds me, however, that rehabilitation of this relatively young offender must not be forgotten. [ 33 ] Both counsel acknowledge the mitigating factor here of guilty pleas, even at a late date. [ 34 ] And both counsel have cited numerous cases but acknowledge the limited utility of many of them due to the fact-specific nature of sentencing, particularly for sexual offences.

In addition, many of the decisions, like this one, involve luring and contact offences and the resulting sentences must be looked at both for their categorization of those offences and the global result. [ 35 ] Of those cases cited for general principles and ranges, I rely on the post- Friesen decision of Dichrow, 2022 ABCA 282 from our Court of Appeal which found that a six-year sentence for sexual assault/sexual interference would have been appropriate. [ 36 ] I accept as well the Crown’s

interpretation of the Woodward decision ( 2011 ONCA 610 ) that, because it predated Friesen , the range for child luring is certainly higher than the 1-3 year range in Alberta pre- Friesen . Justice Renke in R v C, 2023 ABKB 372 earlier this year suggested that it was now in the 3–5 year range. [ 37 ] In R v Collins , 2023 ABKB 134 , Justice Devlin, accepting a guilty plea as significant mitigation, found that a two-year sentence for luring would be appropriate, with 32 months for sexual interference. [ 38 ] Counsel differ in two material respects: 1. How to deal with Mr.

Viau’s time in remand, namely whether a purely mathematical calculation of enhanced credit is justified by Covid conditions. 2. How to deal with Mr. Viau’s psychological assessments, namely whether they reduce his moral culpability and to what degree. [ 39 ] Dealing with them in reverse order, Mr.

Morin cites the R v NMG case from Ontario ( 2020 ONCJ 146 ) in which the sentencing judge considered the impact on a fit sentence of a developmentally delayed offender, not as an automatic mitigating factor but because it reduces his ability to understand the consequences of his actions and may therefore entitle a court to give less weight to denunciation and deterrence. [ 40 ] I agree with that analysis, but here it is clear to me that Mr. Viau does understand that what he has done was wrong – he just does not know why he does it.

My focus must remain on the harm to the young complainant as opposed to the consequences to the specific offender. [ 41 ] Given the length of time over which the offences were committed, the number of young people victimized, and Mr. Viau’s persistence, I find his moral culpability on the high end of the range. I am not persuaded that any medical conditions he may have reduce that culpability. [ 42 ] As to credit for time in remand, Mr. Morin has done a detailed calculation of Mr. Viau’s time in remand during the time when Covid protocols were the most restrictive, when Mr.

Viau was permitted only an hour a day out of cells, and during the least restrictive period, when he was permitted up to ten hours a day out of cells. He argues that for that most restrictive period, Mr. Viau should receive credit at an enhanced rate of 2:1. [ 43 ] Ms. Corabian submits that our Court of Appeal in R v Biever , 2023 ABCA 138 establishes that the better way to deal with Covid, or other unusually harsh conditions in remand, is to consider those conditions as mitigating factors in arriving at a proportionate sentence. That approach avoids the complex calculations suggested by Mr.

Morin and is more consistent with the express language in the Criminal Code . VIII. Aggravating Factors [ 44 ] Mr. Viau comes before the Court with a previous sexual interference conviction for which he received a custodial sentence. [ 45 ] I must be careful not to use the actual elements of the offences as aggravating factors. But I do note that for five of the six counts in the first set of offences against the named complainant, the offences were repeated multiple times. This was not a one-off. It was calculated and planned. Mr. Viau was persistent, even after being caught out.

Similarly, for the second set of offences, Mr. Viau violated six young girls, some over a considerable period. [ 46 ] And without double-counting for his criminal record, the offences were committed while on probation for an offence of a similar nature. IX. Mitigating Factors [ 47 ] I have referred to Mr. Viau’s guilty pleas being a mitigating factor. Ms. Corabian acknowledges that while they were not early, the Crown had advance knowledge early enough to cancel its witnesses scheduled for the trial.

[ 48 ] I further consider mitigating that a substantial portion of Mr. Viau’s time in remand was during a time when Covid restrictions on his movement were unusually strict. [ 49 ] I see nothing else in mitigation. Mr. Viau has submitted character references from his parents and future sister-in-law and other friend and family members. They say what I would expect them to say, including that they continue to support him. I hope that they do so. [ 50 ] As to the letters from Norquest, I accept them as showing that Mr. Viau did not waste his time in remand and that he is open to rehabilitation.

I do not see them as mitigating in its true sense. X. Sentences [ 51 ] Bearing in mind those principles and objectives together with the aggravating and mitigating factors, I will assign sentences to the specific counts from the indictments ending in 303 and 121. Count 1 of 303: The Crown posits a sentence range of 2-3 years, with 12-18 months in this particular case. I note that this was the undercover operation without the involvement of a child. But although inchoate, the offence shows the predatory nature of the offender. I find a fit and proper sentence to be 12 months.

Count 2 of 303: The Crown posits a sentence of 2 years. As abhorrent as possession of child pornography is, I find that the nature of the child pornography was not as extreme as in many cases we see and that a fit and proper sentence is 12 months , consecutive to Count 1. Count 5 of 303: The Crown posits a sentence range of up to 4 years and recommends 3. Although that recommendation, in my view, recognizes the seriousness of the communications with the complainant, I find a fit and proper sentence to be 2 years , consecutive to Count 2.

Count 7 of 303: The Crown suggests a sentence of 5 years given the number of times Mr. Viau had unprotected sex with the complainant. I would not take issue with that suggestion but for the number of other convictions and their cumulative sentences and the mitigation I find for remand conditions. For that reason, I find a fit and proper sentence to be 3 years , consecutive to Count 5. Counts 10 and 11 of 303: These should be dealt with together. The Crown suggests 12 months. I accept that a fit and proper sentence is 12 months , concurrent to each other but consecutive to Count 7.

Counts 1 and 2 from indictment ending in 121: These are distinct offences involving six separate complainants other than the complainant in indictment 303. It will be remembered that the duration and length of the messages was horrific. I find a fit and proper sentence to be 12 months on Count 1 and 18 months on Count 2 for a total of 2.5 years, consecutive to each other and to Count 7 on indictment 303. Those sentences total 10.5 years . [ 52 ] At the time of the hearing, Mr. Viau had 866 actual days in remand. That number to and including today is 932 days.

Pursuant to s. 719 (3.1) of the Code , that entitles Mr. Viau to a credit of 1398 days, or approximately 3.8 years, against the sentence which I otherwise impose. [ 53 ] The net result is a sentence of incarceration for a period of 10.5 years less credit of 1398 days. [ 54 ] In looking at totality, I find that that sentence, which results in a period of incarceration of roughly 6.7 years, recognizes as best as is possible the harm to the complainants and to society caused by Mr. Viau’s criminal behaviour. [ 55 ] At the request of his family, I will recommend that his prison sentence be served in Alberta.

Ancillary Orders

[ 56 ] DNA: There will be a DNA order pursuant to

section 487.04 attached to Count 1 of 303. [ 57 ] SOIRA: There will be a SOIRA order for life pursuant to

section 490.013(4) as a result of Mr. Viau being subject to an earlier SOIRA order. [ 58 ] Prohibition: There will be a

section 161(a),(b),(c), and (

d) Order for a period of 12 years from his release, all subject to the reasonable exceptions discussed with counsel. [ 59 ] Forfeiture: There will be forfeiture of exhibits under

section 164.2 following expiry of the appeal period. [ 60 ] No-Contact: And there will be a no-contact order respecting the complainant KA pursuant to

section 742.21. [ 61 ] Thank you to both counsel. [ 62 ] Submissions heard September 5, 2023. Decision delivered orally on the 09 th day of November, 2023. Dated at the City of Edmonton, Alberta this 16 th day of November, 2023. J.S. Little Appearances: Ioana Corabian Appeals and Specialized Prosecutions for the Crown Ronald A. Morin RA Morin Law Offices for Mr. Viau