R v Borchert, 2023 ABKB 647

Court of King’s Bench of Alberta Citation: R v Borchert, 2023 ABKB 647 Date: 20231121 Docket: 200810950Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Kevin Borchert Accused _______________________________________________________ Reasons for Decision on Sentencing of the Honourable Justice Avril B. Inglis _______________________________________________________ I. Background [ 1 ] Mr. Borchert has entered a guilty plea to possession of child pornography pursuant to s 163.1(4).

Counsel agree he possessed 2151 images and 692 videos of child pornography, including diverse content in various forms, including drawn or animated and photographic images and videos of real children. While not convicted of a separate offence, Mr. Borchert admits to sharing a video once. Mr.

Borchert’s collection was saved as early as June 2019 and he was actively online engaging with child pornography at least until August 2, 2020, however he admitted to the police that he had been viewing and saving such content for 2 years. [ 2 ] Counsel disagree not just on the period of the appropriate sentence, but also whether or not a conditional sentence order (“CSO”) is appropriate for this offence and this Offender. In fact, they disagree whether a conditional sentence order is, in general, appropriate for this type of offence.

[ 3 ] In R v Proulx , 2000 SCC 5 , Chief Justice Lamer said at para 109 that: While incarceration may provide for more denunciation and deterrence than a conditional sentence, a conditional sentence is generally better suited to achieving the restorative objects of rehabilitation, reparations, and promotion of a sense of responsibility in the offender... [ 4 ] Notably, however, the Court also said at para 22 that a CSO is: …also a punitive sanction capable of achieving the objectives of denunciation and deterrence... II.

Factors before the Court [ 5 ] Crown counsel tendered a representative sample of videos and images seized from Mr. Borchert as an exhibit. There were animations which included infants, live recordings and still photos of very young children up to teens. The content included significant sexual abuse by adults and, in one example, a deeply emotionally distraught child of unknown age, experiencing the trauma of sexual abuse while being recorded.

The files are of severe exploitation and abuse of young children, showing detailed sexually invasive conduct: the examples do not simply meet the definition of child pornography, they are significantly serious. [ 6 ] Aggravating factors include that the Offender spent at least a year accessing child pornography repeatedly, the materials were broad in content, and the collection was extensive. [ 7 ] Mr. Borchert has no prior criminal record and appears to otherwise have been of good behavior. These are neutral factors. [ 8 ] Mitigating factors include Mr.

Borchert’s guilty plea, remorse, recognition of the impact of his conduct and the high percentage of drawings and animations that form his collection. Defence counsel has also argued that his family obligations, which were briefly explained as the responsibility to care for his ailing father, should be treated as mitigating. III. Exhibits of child pornography [ 9 ] Crown Counsel managed the exhibit at the sentencing hearing with great care. Crown counsel also attended with a WIFI- disabled laptop and an external thumb drive containing the representative sample.

The Court then viewed the representative sample of the images and videos, following which the thumb drive was marked as a sealed exhibit. [ 10 ] Considering this process in retrospect, I question the probative value in this case, and in general. When an agreement by counsel is made, the Court accepts those agreements as facts.

If counsel were to agree to a description of images and/or videos that meets the definition of “child pornography” in s 163.1(1) of the Criminal Code , and it is also agreed that the content meets the definition, this exhibit viewing, and subsequent management likely has limited probative value. Further, the process is also likely to cause harm. [ 11 ] Primarily it is harmful to the victims of the sexual violence and exploitation that appear in the Offender’s collection. Each viewing of the content is abusive to those victims.

In cases where there is agreement, the harm done by having one more set of eyes directed at the material should be avoided as much as possible. I agree with R v NMG , 2020 ONCJ 146 where Justice Green wrote: [61] A child’s suffering is exacerbated each time someone watches their victimization. I was one more person who viewed the sexualization, degradation and humiliation of these children and teens. They have already struggled with feelings of shame, embarrassment and the seemingly never-ending trauma of believing that these images may be out there somewhere on the Internet haunting them.

Child victims are entitled to be treated with dignity in a courtroom and their privacy should be respected as much as possible. At the very least, courts should not contribute to the perpetuation of a child’s trauma by viewing these materials unless the probative value substantially outweighs the prejudicial impact. [ 12 ] Further, this process involves unnecessary exposure to traumatic images by an extra member of the criminal justice system.

At a time when there is increased sensitivity to the possibility of severe psychological impact of the work by first responders and others that are exposed to traumatic events as part of their employment, steps should always be taken to protect as many of those workers - including judges - to as little exposure as is required. [ 13 ] Finally, by publishing the pornography onto another drive, counsel create another copy of the content in question which then must be managed and stored very carefully in hopes of avoiding risk of further exposure of the material. [ 14 ] I do not suggest that Crown counsel should never tender the exhibits for a judge to view as part of the process.

They maintain their prosecutorial discretion; however, they may rely exclusively on the formal agreed facts to prove the actus reus of the offence. [ 15 ] In this way, it appears that I disagree with R v Hunt , 2002 ABCA 155 , where the Court of Appeal found that the sentencing judge erred in declining to view the photographs when the Crown attempted to tender them as an exhibit for sentencing. At para 16, the Court stated: [16] Ordinarily, a sentencing judge would be expected to review photographs that depict the crime. By definition, such photographs are relevant.

In this case, the photographs do not depict the crime – they are the crime. That is, the actus reus of this offence is making, printing, publishing, or possessing photographic representations of someone under eighteen years engaged in explicit sexual activity. Thus, they are relevant. Being relevant, they should have been reviewed by the sentencing judge unless some other exclusionary rule applied. Counsel for the Respondent did not suggest the prejudicial effect outweighed the probative value. We doubt such an argument could be made when dealing with the actus reus of the crime.

So the argument must come down to some sort of estoppel against the Crown.

[ 16 ] The Court of Appeal received and viewed the material as part of the appeal. The issue in Hunt focused on a situation where Crown counsel sought to introduce the child pornography samples and Defence counsel had opposed on the basis that it was not part of their agreement with Crown counsel. The sentencing judge declined to view the exhibits despite Crown counsel’s application to tender them, without a specific reason other than that Defence counsel complained that the photos were not part of the agreed facts.

I understand that the Court of Appeal was critical of the Court refusing to receive probative exhibits that were proffered by the Crown. That does mean the Crown is required to put such material before the Court. [ 17 ] In R v GKS , 2019 ABPC 75 , Judge DePoe declined to follow Hunt and refused to view the photographs when he accepted the offender’s guilty plea and sentenced him.

The salient paragraphs are paras 6 – 31, the most relevant are at 26 and 28: [26] I emphatically do not agree that it is necessary in every case to examine this kind of material to get a full appreciation of its nature, or to arrive at a fit sentence for a particular accused. In many cases, that the material meets the definition of child pornography is not in dispute, and ordinarily it can be adequately described in an Agreed Statement of Facts.

Counsel should be encouraged in this practice, and as in other cases, the adversary system should be relied upon to produce a proper description of the facts offered in support of a guilty plea. [28] In no other kind of crime is it said that the factual basis of the actus reus of even a complex and serious matter can’t be fully and sufficiently established in evidence for sentencing purposes, because of a lack of photographs or video of it.

At the same time for virtually no other kind of crime can it be said that the mere existence of such photographs or video is more degrading, and invasive of the privacy of very young and vulnerable complainants. [ 18 ] I agree. Unless necessary to the process, exposing these victims to more viewers of the pornography and creating more locations of the material that must be protected, should be avoided. It is difficult to imagine a more important area in which a judge should exercise their crucial gatekeeping function and press counsel who offer these exhibits if they add anything probative to the agreed facts.

Again, I cite NMG , where Justice Green said: [63] Judges are the gate keepers of justice. I should not have passively allowed the introduction of this evidence and participated in the viewing of it without first asking for submissions about its probative value and assessing whether that probative value was outweighed by the obvious prejudicial effect.

I should have done better and will “do better” in the future by inviting submissions before reviewing any child exploitation materials during a sentencing. [ 19 ] In R v Haimour , 2010 ABQB 7 (overturned on other grounds: R v Haimour , 2011 ABCA 143 ) during a voir dire on the admissibility of the child pornography material, the Court declined to view the exhibits as viewing them would not assist in determining the issue of whether or not the accused possessed or accessed the material.

The Court relied on R v Trochym , 2007 SCC 6 for the principle that misleading, or highly prejudicial statements have no place in a criminal prosecution. At paras 31 – 32, the Court stated: [31] I am satisfied that the above principle outlined by the Supreme Court of Canada in Trochym is applicable to this case. Whether it be statements or exhibits such as photographs or videos, the issue is whether or not they are highly prejudicial and are not required in the fact-finding process.

This is especially true as in this case where there is an admission that the seized material in question is child pornography as defined by the Criminal Code and that the only issue to be decided is whether the Accused possessed or accessed this child pornography. [32] It would appear that where the viewing of the child pornography is of no assistance in proving an essential element of the alleged offence, then there is no good purpose for doing so.

The only reason that the trier of fact is being asked to view the child pornographic material when it will not and cannot assist the Court in determining the outstanding issue to be decided, is simply to inflame or otherwise distort the fact finding process. [ 20 ] Only evidence that is relevant, whose probative value outweighs its prejudicial effect, should be tendered before the Court. Even in the context of a guilty plea the Court may question the admission of evidence put before it.

In any situation where the evidence itself is harmful, which will always be the case in exhibits that contain child pornography, the Court’s obligation to question the necessity, probative value, and policy reasons against admission, is heightened. IV.

Summary of Counsels’ Arguments and Sentencing Cases

a) Crown counsel’s cases and position [ 21 ] Crown counsel’s recommendation for sentence is 18 months in custody, followed by 2 years of probation. [ 22 ] Crown counsel cites the following aggravating factors present for this Offender: he held material on many devices which makes the pornography more readily available; he downloaded the material over a long period of time; and the collection was large and diverse.

I also note the collection included not simply nude images of children, but recordings or depictions of serious sexual abuse. [ 23 ] Crown counsel identified that early sentencing cases for these kinds of offences were often CSOs and over time jail sentences became the norm. Then, when minimum sentences were introduced, CSOs were not available. Now that the minimum sentence has been struck down, they are available again, however Crown counsel argues that they do not meet the sentencing goals that are key in child pornography cases. [ 24 ] I add to this

summary the progress described in R v McDowell , 2023 ABPC 59 at paras 1 and 2 : 1 Society's understanding of the profound harmfulness and wrongfulness of possession of child pornography has evolved.

Remarkably, just over twenty years ago, it was a live issue whether possession of child pornography caused harm such that Parliament could impose criminal sanctions ( R v Sharpe , 2001 SCC 2 ). In 2010, the Alberta Court of Appeal noted that earlier sentences for child pornography offences had been relatively lenient, but this was no longer appropriate because society's understanding of the gravity of these offences had increased. ( R v PJB , 2010 ABCA 49 at para 10 ).

In 2015, Parliament raised the maximum sentence for possession of child pornography from 5 years to 10 years, sending a message that sentences should increase ( R v Lacasse , 2015 SCC 64 at para 7 ). 2 Despite these appellate and legislative pronouncements, in 2020, the Supreme Court of Canada concluded that sentences for sexual offences against children, including possession of child pornography, were still too low, and that they must be raised to reflect the current societal understanding of the gravity and culpability of these offences ( R v Friesen , 2020 SCC 9 , at paras 5 , 44, and footnote 2). [ 25 ] This segues to two separate cases that bear the same name that both counsel addressed extensively.

I agree with counsel that the principles of the important case of R v Friesen , 2020 SCC 9 (“ Friesen SCC”), which broadly addresses the issue of sentencing offences against children, apply to child pornography sentencing. The Supreme Court notes that technology plays a significant role in the victimization of children. [ 26 ] Also key to each counsels’ arguments is R v Friesen 2022 ABCA 147 (“ Friesen CA”) and its original sentencing decision R v Friesen 2021 ABPC 223 . This is a post- Friesen SCC decision on point and applies the SCC principles to a child pornography sentencing.

The result in the lower court and on appeal was a CSO. The Court of Appeal re-iterated a direction to prioritize deterrence and denunciation while still properly affording appropriate weight to other sentencing factors (including, rehabilitation, Gladue factors and proportionality). [ 27 ] Crown counsel also cited the following cases: [ 28 ] R v Gerbrandt , 2021 ABCA 346 : The Crown appealed a suspended sentence and three-year probation sentence after the sentencing court determined that the minimum sentence was cruel and unusual.

The Court found reversible errors in the Charter analysis and imposed imprisonment for two years less one day, followed by 24 months’ probation, accepting the Crown’s submission. The Court of Appeal stated that this sentence should not be viewed as a “cap, floor, or starting point.” Without the Crown’s submission of 2 years less a day, “members of [the] panel might have imposed a higher sentence” (at para 98). The offender was guilty of both making available and possession of child pornography.

The degree to which the offender was making the material available (through peer-to- peer sharing) was a significant consideration, with a great deal of reference to Friesen SCC for increasing the sentence. The Court did not consider application of CSOs. [ 29 ] R v McDowell , 2023 ABPC 59 : This 70-year-old offender was sentenced to four years in prison for possession of an extensive collection (31,500 unique items). The material was diverse in severity of content, and the offender had been accessing material for 30 years. He was otherwise a functioning member of society.

The offender was found to have a high risk to reoffend, failed to appreciate the harmfulness of his crime, and had not undertaken treatment. [ 30 ] R v Brown , 2022 ONCA 516 : The offender appealed a three-year sentence for possession and making child pornography available. The Appeal Court upheld the sentence. Approximately 500 files (a “large” quantity) were downloaded from the accused’s torrent site by the police over the course of a month. Many files were categorized as “severe” which was an aggravating factor.

The Appeal Court upheld the sentence despite ruling that the offender’s personal collection, which had been considered by the trial judge, was inadmissible. [ 31 ] R v Rule , 2023 ONCA 31 : The offender appealed a 22-month jail sentence and argued that ruling out a CSO was one of the reviewable errors. This appellant was 70 years old and had a large collection (23,600 images). Some of the victims were identifiable and made victim impact statements, and the duration and frequency of accessing and possession was high.

Despite several serious health issues and his being the primary caregiver for his 92-year-old mother, the Court upheld the sentence.

Most notably, the Court of Appeal said at para 8: We are satisfied that having regard to the nature of the offence, the size of the collection, the duration of possession and frequency of examination of the images, it was appropriate for the sentencing judge to rule out a conditional sentence which would have been inconsistent with the fundamental purposes and principles of sentencing. [ 32 ] R v McCrimmon , 2022 YKCA 1 : The Court upheld 20 months incarceration and 2 years’ probation for possession. Crown counsel had appealed to have the original sentence raised to three years.

The Court notes in obiter that a three-year sentence would have been reasonable, however the sentence imposed did not depart unreasonably from the principle of proportionality. This offender’s moral culpability was high, the material was extensive and much of it was very serious content. There was evidence of remorse and progress made by the offender.

b) Defence counsel’s cases and position [ 33 ] Defence counsel’s recommendation for sentence is a twelve-month CSO. Defence agrees with Crown counsel that denunciation and deterrence are key sentencing principles for convictions of possession of child pornography. Citing R v Andrukonis , 2012 ABCA 148 : Parliament has stipulated under s 718.01 of the Code that, in sentencing, courts shall give primary consideration to denunciation and deterrence for an offence involving the abuse of a child.

In addition, Parliament has also expressly declared in s 718.2(a) (ii.1) that abuse of a child shall be deemed an aggravating circumstance for sentencing purposes. In the result, offenders convicted of possession of child pornography can expect to be sentenced to jail and not for terms regarded as inconsequential. This is as it should be. [ 34 ] However, counsel also urges this Court to not over-emphasize the importance of those sentencing principles compared to others. They argue that CSOs should continue to be considered appropriate in some cases, including Mr. Borchert.

Restraint and rehabilitation remain important sentencing principles in these cases.

[ 35 ] Finally, counsel relied on the following: i. Accessing Cases [ 36 ] R v Quested , 2019 BCPC 95 : The elderly offender received a 12-month CSO for accessing over 1000 prohibited images over a two-year period. Restraint was described as a key secondary factor. The offender’s circumstances, including a terminal illness which was given considerable weight, make this likely not a strong comparator to Mr. Borchert. [ 37 ] R c Senneville , 2020 QCCQ 1204 : This offender was a 28-year-old with no criminal record had 317 images and search history that lasted over 13 months.

He received 90 days intermittent for possession and 90 days intermittent for accessing, as well as two years probation. [ 38 ] I note that any cases cited that pre-date Friesen SCC are of limited precedential weight. [ 39 ] R v Cvitko , 2021 ABPC 52 : This 46-year-old offender accessed child pornography over a 14-year period. There is no possession in this case. The Court imposed a 6-month sentence, followed by three years’ probation. Two representative photos were used and considered to be at the low-end of the seriousness spectrum.

This sentence was explicitly increased, given the gravity of the offence, and considering Friesen SCC . Notably, at paras 96-97, the Court acknowledges that a CSO would not adequately address the primary objectives of denunciation and deterrence, and that circumstances where CSOs are granted in recent years have been limited to “exceptional” cases. [ 40 ] R v Crump , 2023 ONCJ 132 : This offender was 26 at the time of arrest. He was charged with accessing, possessing, and making available child pornography. 4.5 years of strict bail conditions were a relevant factor.

Images were low in seriousness and the offender was found to be a low risk to reoffend. He was sentenced to 6 months in jail. This case also asserts that CSOs are exceptional. [ 41 ] R v Treloar , 2023 ONCJ 100 : This 60-year-old offender with evidence that 2500 images had been accessed on his computer over a period of one year. Images were categorizable along entire severity spectrum. Six months in prison was imposed, and the Court noted that this was impacted by the fact that the Crown chose to proceed by

summary conviction. The case considers the impact of immigration consequences for the offender but ultimately determines that he “[was] the author of [those] consequences by committing this serious offence.” ii. Possession Cases: [ 42 ] R v Friesen , 2021 ABPC 223 (upheld in 2022 ABCA 147 ): This case is discussed at length below. [ 43 ] R v Swaby , 2018 BCCA 416 : A 4-month CSO and 2-year probation order was upheld on appeal. The offender was 23 at the time of the offence and suffered from schizophrenia and “a significant level” of cognitive impairment. He possessed 400 videos and 480 images.

The material in his position was extreme, however there was psychiatric evidence that time in prison would be incredibly harmful to the offender. This court, even pre- Friesen SCC, stated at para 67 that “except in exceptional cases, those who possess child pornography will be incarcerated.” [ 44 ] R c Arsenault , 2019 QCCQ 7403 : Files only contained comic-style illustrations or drawings and were accessed over four years. Offender was 61 at the time and had several mitigating factors.

He was sentenced to 90 days incarceration and 18 months probation. [ 45 ] R v Brittain , (4 Dec 2018), Calgary, Alta, docket 151535455Q1 (QB)(unreported): The following is from defence’s brief: [T]he accused collected 26 images and 4 videos of anime drawings of child pornography over a 4-year time period. The Crown pointed out that while this is all the material that was found, considerably more would have been accessed over that time period. The Accused was a 25-year-old male residing with his parents.

A 12-month CSO was imposed. [ 46 ] Again, I note that pre- Friesen SCC cases are of limited use. [ 47 ] I considered other sentencing cases on point that were not brought by either counsel. iii. Post- Friesen SCC cases not cited by counsel: [ 48 ] R v Rozell , 2023 ABKB 527 : This offender pleaded guilty to possession of child pornography . The offender had a combination of intentionally and non-intentionally saved images on two phones, totalling 451 images and 20 videos. This case directly examines whether a fit sentence can include a CSO.

In this instance, a CSO was not appropriate and 6-months’ incarceration, plus a 24- month probation sentence was entered. Notably, Michalyshyn J also decided R v AL (below). [ 49 ] The following paragraph relates to the “exceptional circumstances” issue raised in Friesen ABCA: 39 Also canvassed in AL at some length was the threshold question of whether "exceptional circumstances" were necessary before granting a CSO in the context of a sexual offence involving children. I was guided then by the decision in R v Friesen , 2022 ABCA 147 .

The Court of Appeal in Friesen did not state a test that exceptional circumstances will invariably be required to justify a conditional sentence for the crime of possession of child pornography. It did find however, if only incidentally, that the case on appeal before it was one such example of circumstances that were "exceptional enough" … 40 Rozell 's circumstances are readily distinguishable .

I am unable to find really anything "exceptional enough" in Rozell 's circumstances to justify departing from the usual outcome in a child pornography sentencing of a period of incarceration. [ 50 ] R v AL , 2023 ABKB 374 : This offender was sentenced to an 18 months CSO following a guilty plea to unlawfully touching

for a sexual purpose (s 151 of the Criminal Code (CC)). This case considers Friesen ABCA extensively. Here, Justice Michalyshynordered a CSO; like Friesen ABCA, he focused on the offender’s striking factors. Here, it was not just rehabilitation (like Mr. Friesen),but a very high level of remorse as well. [51] R v Bultmann, 2022 ABPC 106: The offender was sentenced to 2 years less a day CSO, followed by 3 years probation after aguilty plea. He committed the offence between the ages of 25-30. The collection contained 30,784 child pornography images and 642videos.

All of these were either anime or computer generated (there were no live humans in any of the content). [52] R v Friesen, Daniel, 2022 ABPC 129 and R v Friesen, Derek, 2022 ABPC 130: These cases involved twin brothers. Thedecisions are almost identical, as well, with only slight factual variations between them. They also cited Rozell, above. The collectionswere small, each offender pleaded guilty, each wanted to go to counselling to reduce their future risk and they were young men. Bothoffenders were also found to be at a low risk to re-offend.

Each brother was sentenced to 6 months of jail and 24 months of probation. [53] R v Mathiesen, 2023 NSSC 314: This is a notable case summarizing multiple sentencing cases in this area. The offender was54 years old, married with three children. He committed the offence while already subject to a recognizance. Factually, it is different thanMr. Borchert’s offence. However, this case refers directly to the Friesen ABCA extraordinary circumstances issue, which I foundhelpful.

After noting the facts in Friesen ABCA, including the completed treatment by the offender, the Court found: [193] In this case, I find a conditional sentence for Mr. Mathiesen would offend the proportionality principle given the current bindingjurisprudence and the requirements of the Criminal Code. I am not satisfied that Mr.

Mathieson’s personal circumstances amount toextraordinary circumstances after reviewing the jurisprudence that addressed granting conditional sentences for these offences since theSupreme Court of Canada’s decision in Friesen. [54] R v Smith, 2023 BCPC 188: This case is also factually distinct (in particular, a Gladue report is a factor). The offender wassentenced to 10 months jail and 2 years probation. I note, the Judge did not view the collection and was content with the descriptionsfrom the agreed facts (at para 9). The decision also effectively considers “collateral consequences” at paras 50-51.

Finally, it extensivelydiscusses the appropriateness of CSO’s and discusses the “exceptional” case question from paras 61-105. [55] R v MM, 2022 ONCA 441: The Ontario Court of Appeal allowed a Crown appeal from a 15-month conditional sentenceimposed on an offender convicted of possessing and making child pornography. The complainant was 15. She sent him images of herbreasts which he admitted to possessing. He sent her images of his penis. They agreed that when she turned 16, they would meet andhave sex. She was the foster daughter of his aunt.

The Court of Appeal found that a 15-month carceral sentence would have beenappropriate. The Appellate Court stated: [13] The Crown argues that the trial judge erred in principle and the conditional sentence he imposed was demonstrably unfit in light ofR v Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1. [14] We agree. [15] The Supreme Court's instructions from Friesen could not be clearer: sentences for sexual offences against children must increase.There are no qualifications here. Sentences have been too low for too long.

Denunciation and deterrence are of primary importance: R vInksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para 3. Those who commit sexual offences against children must understand thatcarceral sentences will ordinarily follow. [16] Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited toexceptional circumstances that render incarceration inappropriate — for example, where it gives rise to a medical hardship that could notadequately be addressed within the correctional facility.

It would not be appropriate to enumerate exceptional circumstances here and wemake no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment shouldhave been imposed. V. Legal Framework [56] I rely on the summaries of the fundamental principles of sentencing starting at para 10 of AL.

Section 718, 718.1 and 718.2 ofthe Criminal Code lists the objective of sentencing to include denunciation, deterrence, separation of offenders, rehabilitation, reparationand promoting responsibility.

A fundamental issue is that a sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. [57] AL quotes R v Collins, 2023 ABKB 134 at paras 32-39, where it well summarizes Friesen SCC, which I also must consider: [32] In R v Friesen, 2020 SCC 9, the Supreme Court of Canada comprehensively restated the correct approach to sentencing such cases,instructing Courts to impose sanctions that "fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offencesagainst children". [33] At the heart of the Friesen decision lies a definitive judicial recognition that the harms of sexual offences against children areuniquely serious, long-lasting, and pervasive: Friesen at para 74; R v D(D), (ON CA) at para 72.

Experiencingsexual violence in childhood can and often does have "life altering consequences": R v Woodward, 2011 ONCA 610 at para 76.

Suchviolence "can interfere with children's self-fulfillment and healthy and autonomous development to adulthood precisely because childrenare still developing and learning the skills and qualities to overcome adversity": Friesen at para 58. [34] Sexual violence against children is also known to damage relationships within families even where the perpetrator lies outside thecircle of trust, and this harm can spread to the child's other social relationships at school and in the community more broadly: Friesen atparas 60-61.

Even more tragically, it is well-established that "children who are victims of sexual violence may be more likely to engage

in sexual violence against children themselves when they reach adulthood. Sexual violence against children can thus fuel a cycle ofsexual violence": Friesen at para 64. [36] For these reasons, the objectives of denunciation, general and specific deterrence, and the need to separate offenders from societymust take precedence in such cases, save for exceptional circumstances: DD at para 72; Woodward at para 76.

This principle conformswith Parliament's enactment of s 718.01 of the Criminal Code, which elevates these sentencing objectives to a primary position in crimesinvolving the abuse of people under the age of 18. [37] Finally, Friesen expressly invited upward departures from prior precedents in the sentencing of sexual offensives against childrenwhere this is necessary to give effect to the governing principles articulated in that case. [38] By way of specific guidance, the Supreme Court offered five non-exhaustive factors which sentencing courts should consider inassessing a proportionate penalty. These include: (

i) the likelihood of re-offence; (ii) abuses of trust or positions of authority; (iii) theduration and frequency of the assaults involved; (iv) the age of the victim; and (

v) the degree of physical interference with the child:Friesen at para 121-147. [58] I note that while Friesen SCC explicitly does not refer to pornography offences, I find the following applies, from para 90: 90 The fact that the victim is a child increases the offender's degree of responsibility. Put simply, the intentional sexual exploitationand objectification of children is highly morally blameworthy because children are so vulnerable (R v Morrison, 2019 SCC 15, [2019] 2S.C.R. 3(S.C.C.), at para. 153).

As L'Heureux-Dubé J. recognized in R v W (LF), 2000 SCC 6, [2000] 1 S.C.R. 132 (S.C.C.), "[a]s tomoral blameworthiness, the use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crimedemonstrating the worst of intentions" (para 31, quoting R v W (LF) (1997), (NL CA), 155 Nfld. & P.E.I.R.115 (Nfld. C.A.), at para 117, per Cameron J.A. ("LFW (C.A.)")). Offenders recognize children's particular vulnerability andintentionally exploit it to achieve their selfish desires (Woodward, at para 72).

We would emphasize that the moral blameworthiness ofthe offender increases when offenders intentionally target children who are particularly vulnerable, including children who belong togroups that face discrimination or marginalization in society. VI. Analysis [59] I find that Mr. Borchert’s offending is mid-range. He held a medium-sized collection; it depicted serious sexual abuse; one ofthe videos showed terrible trauma; he spent time collecting the materials.

The following mitigating factors lead me to reduce thissentence: he offered a guilty plea; has shown remorse; he has strong family ties and a commitment to care for his ailing father. [60] I have considered the post-Friesen SCC cases before the Court. The fit and proper sentence in the case is between 1 to 3years, based on cases with similar collections and similar offender antecedents. Crown counsel recommends a sentence of 18 months.These bare facts of the offence would lead me to agree with Crown counsel. [61] Given his mitigating factors, Mr.

Borchert’s sentence will be 16 months. [62] The remaining key issue is whether Mr. Borchert should serve that sentence in a jail or a community setting. Specifically, hewishes to serve his sentence in his home with his parents. [63]

Section 742.1 of the Criminal Code lists the 4 required criteria for a conditional sentence order: there must not be a minimumterm of imprisonment, the sentence imposed must be for less than two years, the safety of the community would not be endangered bythe offender serving the sentence in the community, and a conditional sentence would be consistent with the fundamental purposes andprinciples of sentencing. The Criminal Code requires the courts to consider all punishments other than imprisonment where reasonable ats 718.2 (

d) and (e). [64] Defence counsel asserts that Mr. Borchert meets all the requirements for a CSO and thus, I am bound to sentence him to one.Defence relies significantly on Friesen ABCA (and the provincial court decision) which focuses on the circumstances of the offender. Inthat case, Mr. Friesen was experiencing newfound fame and success in his musical career, which were both ended permanently becauseof his child pornography charges. The Court of Appeal found that offender to be completely rehabilitated, supported at sentencing by twoexpert opinions which followed successful specific treatment.

Finally, the Court of Appeal considered the tragic childhood heexperienced which led to substance addiction as well as his involvement in child pornography. [65] The Court of Appeal, like the sentencing judge, focused on the offender with little comment on the offence. Mr. Friesen had asmall collection of 102 images and 23 videos compared to Mr. Borchert. The period of uploading and possessing was 4 months. [66] The Friesen ABCA decision supports Defence counsel’s position that this offence can at times be properly addressed by aCSO. However, like all sentencing cases, it is very fact and offender specific.

The high publicity of these charges caused by Friesen’scelebrity status and the subsequent effect on his career were noted specifically by the Court of Appeal which do not exist here, despiteDefence counsel’s suggestion that a Google search leads to reports of his client’s arrest. Many offenders’ convictions are discoverable bya Google search. Mr. Friesen’s were different: They were notorious. [67] More importantly, the Court of Appeal’s second consideration (at para 56) was that Mr.

Friesen “had deep insight into thewrongfulness of child pornography, he was remorseful, had taken considerable steps to treat his predilection for child pornography andwas completely rehabilitated.” This factor is not present here, either. This factor contributes strongly to the requirement that a CSO isonly available if the safety of the community is not endangered by the offender serving in the community. Further, it addressessentencing factors such as rehabilitation and remorse. These are significant differences from Mr.

Borchert’s case. [68] Again, I note the law is clear that general denunciation and deterrence are the primary sentencing considerations in cases of

possession of child pornography. Here, specific deterrence is a pressing objective. [ 69 ] Ultimately, I find that a CSO would serve many sentencing principles, and benefit Mr. Borchert. However, I do not find that his circumstances are exceptional to warrant this Court straying from jail sentences for these types of offences. A CSO, in certain circumstances, can meet the principles of deterrence and denunciation, as well as other sentencing goals, but cannot do so here. [ 70 ] Mr. Borchert committed this offence while living in his parents’ home while spending time alone.

The proposed sentence creates that exact atmosphere. This outcome is not proportionate to the gravity of the offence or Mr. Borchert’s high moral blameworthiness; nor can it be understood to be a deterrent in any way. [ 71 ] I rely on this quote from Rozell : “I am unable to find really anything "exceptional enough" in Rozell's circumstances to justify departing from the usual outcome in a child pornography sentencing of a period of incarceration.” [ 72 ] I also conclude that such a sentence would not satisfy the principle of proportionality in this case. [ 73 ] I find that Mr.

Borchert has not completed a level of rehabilitation to establish that he is no risk to the community. That is a bar to a CSO. While risk to the community includes all manner of criminal offence, the offence that Mr. Borchert committed is one that is most secret, easily available, and – as I have already pointed out – conducted in the place where he wishes to spend the term of a conditional sentence order. The risk to children and the community has not been disproved. [ 74 ] Mr. Borchert’s family obligations are not unusual.

The collateral impact of his offending on his life is also not significant such that the jail sentence that is appropriate here should be varied. VII. Conclusion [ 75 ] I cite TLB , 2007 ABCA 61 at para 27 : The sexual exploitation of children through child pornography and the use of the Internet to distribute it constitute a profound and present danger to children around the world. Canada, as part of the world community, must do its

part in ensuring that appropriate sentences are imposed on those who choose to exploit children in this fashion. This offence is difficult to prosecute given the relative degree of anonymity offered through the use of the Internet. And the ease with which images of sexually exploited children can be transmitted through this instant, worldwide network adds to the gravity of the offence and the degree of victimization of the children. It takes only a click of a mouse for one child pornographer to spread graphic images of child sexual abuse internationally in seconds.

Thus, the primary sentencing principles that apply in sentencing those convicted of distributing child pornography must be deterrence and denunciation. [ 76 ] This is consistent with s 718.01 of the Criminal Code which sets out the sentencing objectives for offences involving the abuse of children under the age of 18. [ 77 ] Mr. Borchert, I sentence you to 16 months in jail plus 2 years of Probation.

Having determined that this will not be a CSO, you will be taken into custody to begin your sentence today. [ 78 ] I impose the following ancillary orders: 1) A DNA Order pursuant to s 487.051(1) of the Criminal Code , authorizing the taking of samples for the purpose of forensic DNA analysis; 2) An Order pursuant to s 490.013(2)(

c) of the Criminal Code requiring compliance with the Sex Offender Information Registry Act for 20 years; 3) A mandatory s 109 firearms prohibition that prohibits possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life, and also prohibits, for a period of 10 years from release, possession of any other firearm, crossbow, restricted weapon, ammunition and explosive substance; and 4) An Order under s 161 of the Criminal Code for a period of 10 years after release from jail, according to the specific wording provided by Crown Counsel which was marked as an exhibit. [ 79 ] The following offence-related property shall be forfeited to the Crown: • Police Exhibit PE001 Samsung Galaxy S9 • Police Exhibit PE002 Samsung 128 Gb Micro-SD Memory Card • Police Exhibit PE004 Samsung Galaxy A8 Tablet • Police Exhibit PE008 Stryker PC Tower [ 80 ] I will adjourn briefly for counsel to discuss and then make submissions for probationary terms.

Delivered orally on the 17 th day of November, 2023. Dated at the City of Edmonton, Alberta this 21 st day of November, 2023.

Avril B. Inglis J.C.K.B.A. Appearances: Craig Krieger Alberta Crown Prosecution Service for the Crown Shawn King and James Wegener King Defence for the Accused