R v Calderon, 2024 ABKB 1

Court of King’s Bench of Alberta Citation: R v Calderon, 2024 ABKB 1 Date: 20240103 Docket: 220519847Q1 Registry: Calgary Between: His Majesty the King Crown - and - Ralph Emmanuel Pat Calderon Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify KR and KG must not be published, broadcast, or transmitted in any way.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. Corrected judgment: A corrigendum was issued on January 9, 2024; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Sentencing Judgment

of the Honourable Justice D.A. Labrenz _______________________________________________________ Introduction [ 1 ] Ralph Calderon [“Mr. Calderon”] pled guilty to two sexual offences under s. 151 of the Criminal Code involving the unlawful sexual touching of two children. Mr. Calderon was 20 years of age at the time of both offences. Mr.

Calderon’s two victims, KG and KR, were 14 and 13 years old respectively. [ 2 ] The Crown seeks a global sentence of 4 years incarceration for the two offences and the Defence urges a 2-year Conditional Sentence Order [“CSO”] of imprisonment in the community followed by 3 years probation. There was no dispute between the parties as to the appropriateness of the ancillary orders that the Crown wishes imposed upon Mr. Calderon. Circumstances of the Offences [ 3 ] The relevant facts are not in dispute as the parties filed an Agreed Statement of Facts. [ 4 ] In the summer of 2021, Mr.

Calderon was active on social media and used the moniker of ‘James Martinez’ for the application “SnapChat”. Both offences occurred in the summer of 2021. The Factual Circumstances Involving KG as a Victim [ 5 ] Mr. Calderon began communicating via SnapChat with KG in the early summer of 2021. Mr. Calderon used the alias of James Martinez. In addition to lying about his identity, Mr. Calderon also lied by telling KG that he was a high school student. Mr. Calderon was neither a high school student nor a student, instead, Mr.

Calderon was employed as a cook in a restaurant situated in the Calgary International Airport. [ 6 ] On July 13, 2021, during a SnapChat conversation with KG, the pair agreed to meet in a school yard. KG vaped marihuana and was feeling impaired. [ 7 ] KG snuck out of her parent’s home and reported that her gait was unusual from the effects of the marihuana she had consumed. Mr. Calderon met her at the school yard but did not notice her impairment. He began to take off KG’s clothes and pushed her to the ground. [ 8 ] Once on the ground, Mr.

Calderon positioned himself on top of KG and engaged her in sexual intercourse. Mr. Calderon used a condom. KG was 14 years old. [ 9 ] Later, KG learned from her friends, KW and KR, via a SnapChat group conversation that Mr. Calderon was not James Martinez. The Factual Circumstances Involving KR as a Victim [ 10 ] KR met Mr. Calderon over SnapChat in July 2021. As he did with KG, Mr. Calderon used the alias of James Martinez. He also, once again, lied by telling KR that he was a student attending a Calgary Public High School. [ 11 ] KR initially told Mr.

Calderon that she was 15 years of age, but later told him that she was only 13. [ 12 ] After they began conversing over SnapChat, KR asked Mr. Calderon if he could provide her with a vape. Mr. Calderon agreed. Mr. Calderon said that he did not want any money for the vape but requested a “blow job”. [ 13 ] KR told her friend KW about Mr. Calderon and they decided to ask Mr. Calderon if he could obtain vapes for them. They contacted him over SnapChat for that purpose and Mr. Calderon arranged for an Uber to pick them up and bring them to his home. Mr.

Calderon lived with his mother and other family members. [ 14 ] KR and KW arrived somewhere between 0200 and 0400. Once there, Mr. Calderon began to touch KR and he brought her into a bathroom. Mr. Calderon told KR to be quiet because his parents were sleeping. Once in the bathroom, Mr. Calderon touched KR’s breasts and kissed her by putting his tongue in her mouth. He put his hands in her pants and touched her vagina. Afterwards, he provided the girls with the vape products they had requested. The two young females left in an Uber. [ 15 ] Approximately one month later, KR was speaking with Mr.

Calderon over SnapChat. They agreed to meet at Chinook Mall and, once there, agreed to go to Mr. Calderon’s car, which was parked in the parkade. Mr. Calderon then engaged in sexual intercourse with KR in the backseat of his car. There is no indication that a condom was used on this occasion. [ 16 ] The next day KR told her older sister what happened. KR then went to the Alberta Children’s Hospital where a forensic sexual assault examination was performed.

[ 17 ] Mr. Calderon by his guilty plea acknowledged that this offence occurred sometime between August 1 st and September 20 th , 2021. [ 18 ] Mr. Calderon took no reasonable steps to ascertain KR’s age. [ 19 ] In early August 2021, Mr. Calderon was invited back to the school yard by KR. Once there, he was physically assaulted by KR’s brother and other friends of KR and her brother. This assault was videotaped and later distributed on SnapChat. There is no indication that Mr. Calderon suffered any injury from what I would describe as a vigilante assault. [ 20 ] Mr.

Calderon was arrested on January 5, 2022, and after being lawfully chartered and cautioned, he provided a partially inculpatory statement to investigators. Circumstances of the Offender [ 21 ] Mr. Calderon is 22 years old and was born in Manila, Philippines. At the time of these offences, he was 20 years old. At the age of 2, his parents divorced, and Mr. Calderon lived with his maternal grandparents because his mother was working overseas in Qatar. His biological father did not maintain contact, but Mr. Calderon maintains a close relationship with his stepfather. Overall, Mr.

Calderon can be described as having a positive relationship with family and it should be noted that his family has remained supportive throughout his present legal difficulties. [ 22 ] Several of his family members, and others, wrote letters of support, which I have read and considered. In

summary, the letters describe Mr. Calderon as loving and kind-hearted, and the supporters indicate that in their experience Mr. Calderon is always willing to help others. The supporters also advise that Mr. Calderon has expressed remorse for his actions, and that they see his potential as a contributing and valuable member of society. [ 23 ] Mr. Calderon reports that he had an unremarkable childhood and that he felt loved and secure. He attended an all-boys Catholic school while in his adolescence and advises that he had several close friends. [ 24 ] Mr.

Calderon moved to Canada with his mother in 2017 at 16 years of age. [ 25 ] Mr. Calderon is presently employed as a cook and is a student at the Southern Alberta Institute of Technology where he is studying engineering. [ 26 ] Mr. Calderon has had several long-term relationships. His current relationship surpasses 4 years. [ 27 ] Mr. Calderon has no previous criminal record. Psychiatric Pre-Sentence Assessment/Risk Assessment [ 28 ] Dr. Duska, a psychiatrist employed by the Forensic Assessment and Outpatient Services met with Mr.

Calderon for the purposes of a pre-sentence psychiatric assessment and risk assessment arising from the offences for which Mr. Calderon has entered guilty pleas. [ 29 ] During an interview, Mr. Calderon indicated that he used SnapChat to meet new people and friends because his relationship with his girlfriend had become “stagnant”. When describing his offences, Mr. Calderon oddly spoke about his contact with KR in a manner that was not consistent with the agreed facts. Mr. Calderon’s description of the events involving KR more closely resembled what had occurred with KG; however, Mr.

Calderon explained this discrepancy by stating that he had limited memory due to the ingestion of some cannabis for which he had no prior experience. Mr. Calderon also suggested that he remembered kissing his victim, but he did not believe that more invasive sexual contact occurred. [ 30 ] Dr. Duska in his report, however, made it clear that Mr. Calderon did acknowledge the acceptance of his guilt for the two counts of sexual interference. Dr. Duska said that Mr.

Calderon acknowledged the accuracy of the information as detailed in the Agreed Statement of Facts, which accompanied his guilty pleas. [ 31 ] When this matter returned before me after the completion of the assessment for the purpose of hearing sentencing submissions, Defence counsel reiterated that Mr. Calderon accepts the factual circumstances that accompanied his initial guilty pleas. I directed that the Agreed Statement of Facts be read aloud for a second time. Mr.

Calderon, consistent with his previous acknowledgements, acknowledged the accuracy of the facts and expressed no exception or equivocation in relation to the facts or his guilty pleas. I remain satisfied that Mr. Calderon’s pleas were voluntary and informed, and that Mr. Calderon understands the provisions of s.606 (1.1) of the Criminal Code , which I personally reviewed with him on the record. [ 32 ] Dr. Duska described Mr. Calderon’s odd but self reported history as involving a blending and consolidation of the two counts of sexual interference into a single narrative. Dr. Duska is of the belief that Mr.

Calderon did not intend to mislead the court; instead, Dr. Duska suggested that Mr. Calderon’s anxiety resulted in his having conflated his description of events into a single narrative. Dr. Duska further advised that Mr. Calderon did not place blame on his victims and that he fully accepted his responsibility to establish the age of both girls with whom he had sexual contact. [ 33 ] Dr. Duska confirmed that Mr. Calderon had taken steps before meeting with him to reduce his risk by meeting with a therapist, Dr.

Roughly, for the purposes of assessment, the obtaining of coping skills, along with the pursuit of some insight into his own behaviour.

[ 34 ] As to Mr. Calderon’s future risk, Dr. Duska utilized both an actuarial instrument, (STATIC-2002), along with the use of structured professional judgment (RSVP), for the purpose of assessment. Dr. Duska opined that Mr. Calderon was of low risk for sexual recidivism . At the same time, Dr. Duska cautioned that Mr. Calderon minimized his sexual offences and suffered from a lack of self awareness concerning his offending . Dr. Duska found no evidence suggesting that Mr. Calderon suffers from a mental disorder or that he otherwise has any intellectual challenges. [ 35 ] Dr. Duska indicated that Mr.

Calderon could not be diagnosed with having a Pedophilic Disorder because the diagnostic criteria for that disorder would require the victims to be 12 years of age or younger. Dr. Duska did admit of the possibility that Mr. Calderon might have a sexual interest in adolescent females. [ 36 ] Although Mr. Calderon is considered to be of low risk for sexual offence recidivism, Dr. Duska offered that Mr. Calderon would benefit from attending a sex offender program to further reduce future risk. Dr. Duska is of the view that Mr.

Calderon requires therapy to develop more appropriate age-related sexual interests and intimate interactions. Dr. Duska said that should Mr. Calderon receive a federal sentence of incarceration he should complete the designated sex offender programming at Bowden Institution. Dr. Duska stated that should Mr. Calderon receive a community-based sentence, Mr. Calderon should be ordered to attend an outpatient sex offender treatment program through Forensic Assessment and Outpatient Services (FAOS). The focus of the treatment would be to assist Mr.

Calderon to accept his offences and to work on issues of insight, personal responsibility, and victim awareness. [ 37 ] Mr. Calderon addressed the Court when called upon, and I find that Mr. Calderon appropriately expressed regret and remorse for his offending. I would add, however, in a manner that is consistent with Dr. Duska’s conclusions regarding the lack of insight and victim impact awareness, Mr. Calderon concentrated most of his remarks towards expressing regret and remorse to his own family and by extensively detailing the consequences of his offending upon his family.

General Principles of Sentencing [ 38 ] Parliament has afforded some of the most important sentencing principles statutory status as set out in s.718 to 718.3 of the Criminal Code .

Section 718 of the Criminal Code advises that the fundamental purpose of sentencing is the protection of society and 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: (

a) to denounce unlawful conduct and the harm to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 39 ]

Section 718.01 of the Criminal Code states: When a court imposes a sentence for an offence that involves the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 40 ]

Section 718.1 of the Criminal Code mandates that the fundamental principle of sentencing is as follows: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 41 ]

Section 718.2 of the Criminal Code states, in part, as follows: A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years; (iii.1) evidence that the offence has a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation shall be deemed to be aggravating circumstances (

a) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

b) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

c) an offender should not be deprived of liberty, if less appropriate sanctions may be appropriate in the circumstances; and (

d) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal

offenders. [ 42 ]

Section 718.3 (7) provides as follows: When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct (

b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under s.163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence against another child other than an offence under s.163.1. [ 43 ] When consecutive sentences are to be imposed, s.718.2 (

c) of the Criminal Code recognizes that a sentencing judge must consider the principle of totality. This is accomplished by asking whether the overall sentence is unduly long or harsh because any sentence imposed at the end of the day must be proportionate. Put differently, the total sentence must not exceed that which properly reflects the offender’s overall culpability as measured by the gravity of the offence and his moral blameworthiness. [ 44 ] The totality principle is an example of the restraint principle. Parliament recognized the restraint principle when it added s. 718.2 (d)(

e) to the Criminal Code . As the Alberta Court of Appeal stated in R v Arcand, 2010 ABCA 363 at para 53 , the restraint principle does not conflict with the proportionality principle, “in fact, restraint is firmly imbedded within, and central to, the proportionality principle.” [ 45 ] The proportionality principle is the only governing principle under the Criminal Code . Proportionality means that any sentence imposed must properly reflect the gravity of Mr. Calderon’s offences and his degree of responsibility.

The Impact of R v Friesen [ 46 ] In R v Friesen, 2020 SCC 9 , the Supreme Court of Canada restored the 6-year sentence that was imposed by the sentencing judge in relation to a sexual assault upon a 4 ½ year old child. When delivering its reasons, at para 5, the Supreme Court unambiguously indicated that custodial sentences must increase for sexual victimization of children: …we send 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.

Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children.

Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large. [ 47 ] The Supreme Court in Friesen stressed that judges must do the necessary work to understand the wrongfulness of sexual offending against children and the harm that it causes.

As Renke J aptly put it in R v Chung, 2023 ABKB 372 at para 30 , the Supreme Court “direct[ed] a change in the application of sentencing principles, based upon an updated and deepened judicial appreciation of the wrongfulness and harm caused by child sexual offences.” [ 48 ] Sexual violence against children is wrong because it invades personal autonomy, violates bodily and sexual integrity, and intrudes upon dignity. Children must have the personal autonomy to develop to adulthood free from sexual interference and exploitation from adults ( Friesen, at paras 50 – 52).

In particular, the renewed emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality, serves to recalibrate the focus on psychological harm as opposed to merely upon physical harm. As the Supreme Court noted, emotional and psychological harm is often more pervasive and permanent.

This is particularly concerning for children: Friesen, at paras 56 and 58. [ 49 ] In R v DCH, 2020 ABQB 510 at para 71 , I summarized several other important sentencing considerations drawn from Friesen as follows: • The text of s.718.01 of the Criminal Code constitutes Parliament’s decision to prioritize denunciation and deterrence for offences that involve the abuse of children by requiring those sentencing principles to be given “primary consideration”.

The objective of separation from society is closely related and when appropriate can be used as the means to reinforce and give practical effect to deterrence and denunciation. This is a reasoned response to the serious harm such offences cause to children and denunciation embodies the communicative and educative role of law. Where Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge’s discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority.

Nonetheless, other factors may still be accorded significant weight (including rehabilitation and Gladue factors) (paras 101 – 105); • The Criminal Code recognizes that harm is not limited to the direct victim. Parents, caregivers, and family are victims in their own right.

Beyond the harm to families and caregivers there is harm to society as a whole (paras 62 – 64); • The sexual abuse of children is especially wrongful because of the innate power imbalance, and children are especially vulnerable among those they trust (paras 65 – 67); • Sentences must recognize and reflect the harm that sexual offences cause to children and the wrongfulness of sexual violence (para 74); • Sentences must be commensurate with the gravity of sexual offences against children.

Courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm that flows from these offences; and (3) the actual harm; • Sexual violence against children potentially causes several forms of harm: 1) harm that manifests itself during childhood, and 2)

long-term harm that only becomes evident during adulthood (paras 79 – 80); • Courts should consider actual harm where possible. Where direct evidence of harm is not available, harm may be found from the factual circumstances such as a breach of trust or grooming, multiple instances of sexual violence, and the young age of the child. Direct evidence from children or caregivers is not required to find actual harm (para 86); • Courts should not use stereotypes to minimize the wrongfulness of sexual violence against children (para 87).

Applying force of a sexual nature to a child is highly blameworthy because an offender is or ought to be aware that his action will profoundly harm the child.

The intentional sexual exploitation and objectification is highly blameworthy because children are so vulnerable (paras 89 – 92); • Mid-single digit penitentiary terms for sexual offences against children are normal and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances (paras 113 – 114); • Courts should not assume that there is any clear correlation between the type of physical act and the harm to the victim (paras 137 – 146); • A guilty plea in the face of an overwhelming case is entitled to less weight; however, a guilty plea does have other advantages that count in mitigation such as saving court resources and providing a degree of finality to the victims (para 164); and, • Remorse is a relevant mitigating factor that gains significance when it is paired with insight and some indication that the offender has “come to realize the gravity of the conduct, and as a result has achieved a change of attitude or imposed some self-discipline which significantly reduces the likelihood of further offending” (para 165). [ 50 ] As the Supreme Court additionally stressed in Friesen, sentences for sexual offences against children have been increasing since 1987.

In 2005, Parliament increased the maximum sentence for sexual interference from 6 months to 18 months, when the Crown elected to proceed by

summary conviction. Once again, in 2015, Parliament increased the maximum sentence from 10 years to 14 years for sexual interference. [ 51 ] Finally, as Feehan JA noted in R v Sheppard, 2023 ABCA 381 at para 296 , the Supreme Court in Friesen, at paras 121 – 154 detailed some of the significant factors to consider when determining a fit and proper sentence: (

a) likelihood to reoffend; (

b) abuse of a position of trust or authority; (

c) duration and frequency of the offences; (

d) age of the victim; (

e) degree of physical interference; (

f) victim participation is not relevant; (

g) courts are not to treat “ de facto consent” as a mitigating factor or as relevant to determining a fit sentence: The Victim Impact Statements [ 52 ] The victim impact statements relating to KR and KG were read aloud in Court. Consistent with the observations made by the Supreme Court of Canada in Friesen regarding the impact of sexual offending upon child victims, along with their families and communities, the victim impact statements spoke very poignantly to the monumental psychological harm that Mr. Calderon has occasioned by his offending.

The Victim Impact Statement Provided by KG’s Mother [ 53 ] KG’s mother’s victim impact statement describes a veritable gauntlet of psychological harm as suffered by KG and by her family. KG was said by her mother to be suffering from a lack of consistent sleep following her victimization. KG’s schooling suffered, with her grades dropping from the high 80’s at the end of middle school to the 50’s in her first term of high school.

This resulted in added expense for the family with the need for costly tutoring, which continues nearly two years later. [ 54 ] KG’s mother further describes that she has herself suffered a major emotional crisis that has resulted in the loss of proper functioning.

Her employment does not provide her with “sick days” that she might use to cope with having to stay awake at night for the purpose of supporting her daughter when she cannot sleep, and to “ensure [that KG] stayed alive each day when she was struggling with feelings of escapism.” [ 55 ] Predictably, marriage difficulties for KG’s parents ensued because, as KG’s mother explains, neither parent knew how to properly support their daughter while they waited to get KG an appointment for appropriate psychological help. Psychological assistance was required for KG’s parents as well. KG’s father lost his job.

KG’s mother’s work efforts suffered as well. [ 56 ] The assault of KG also had a deleterious effect upon KG’s older sister because of the need for every family member to “drop everything” to support KG. While there was said to be other factors at play, KG’s older sister’s new marriage ended in divorce. [ 57 ] KG’s mother further reported that while she believed that KG is making strides towards recovering from the trauma she

suffered, KG struggles with nighttime thoughts, feelings of escapism, and questions whether she will ever recover. There is a continuing fear held by KG, and by her family, as to what KG’s future holds. KG’s mother describes this fear as being based upon, “studies [that] give a sobering story of what life struggles victims of sexual assault might encounter, going forward.” [ 58 ] KG’s mother reports sadly that not only is KG not the same person, but neither are any of the family members.

KG’s mother underscored this when stating, “we can’t go back and find out who KG might have been before this happened, but we can move forward and hold on to what we have, with all the injuries sustained, like an arm amputated that will never come back...” The Victim Impact Statement Provided by KR’s Mother [ 59 ] The victim impact statement provided by KR’s mother spoke similarly about the adverse consequences of her daughter’s victimization. She stated that her daughter suffers from post-traumatic stress disorder, depression, and anxiety that involves vivid flashbacks, harsh nightmares, and increased fears.

KR was also said to be suffering from lowered self esteem, complete with feelings of emptiness. The flashbacks were described as making KR physically ill. Academically, it was reported that KR’s grades suffered. I was also advised that KR no longer participates in extracurricular activities, and KR was described as having, “lost her drive for all things that used to bring her joy.” [ 60 ] Predictably, KR has spent countless hours in therapy and continues to struggle with sleep because she relives the assaults in her dreams. KR’s mother also stated that KR struggles with self-blame and doubts.

KR was described as having found less than ideal ways to “cope” with the trauma, which coping mechanisms have produced permanent scarring on her body. KR’s mother believes that KR has been “forever changed.” [ 61 ] The psychological impact of Mr. Calderon’s assaultive behaviour has not been confined to KR. KR’s mother said that she has taken stress leave from work because she could not get through her work shifts without being overcome by immense emotions. Consistent with the expected psychological harm, KR’s mother says that she wonders how she could have better protected her daughter.

KR’s mother, herself, has needed regular counselling. [ 62 ] KR’s struggles and the struggles of her mother have also had a negative impact upon KR’s 5-year-old brother. What is a Fit and Proportionate Sentence for Mr. Calderon? The Defence Position on Sentence [ 63 ] As I have previously acknowledged, Mr.

Calderon’s position is that a fit and proper global sentence in relation to the two s.151 Criminal Code offences for which he has tendered guilty pleas is one of a 2-year CSO followed by 3 years of probation (note: this must be 2 years less one day as stipulated by s.742.1 of the Criminal Code ). [ 64 ] This sentencing position is available because on November 17, 2022, Bill C-5 was given Royal Assent. Bill C-5 increased the availability of a CSO. More specifically CSO’s are available for all offences except for the following offences: 1. The offences of advocating genocide, torture and attempted murder; 2.

Offences punishable by a mandatory minimum punishment; and, 3. Terrorism and criminal organization offences that are prosecuted by way of indictment, and for which the maximum term of imprisonment is 10 years or more. [ 65 ]

Section 742.1 of the Criminal Code otherwise stipulates the criteria that must be considered before a CSO can be imposed: 1) the court must impose a term of imprisonment of less than two years; 2) the safety of the community would not be endangered by the offender serving in the community; and 3) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss.718 to 718.2 of the Criminal Code . [ 66 ] In support of the submission requesting the imposition of a CSO, Defence counsel emphasizes several mitigating factors: 1) that Mr.

Calderon pled guilty and spared the victims from coming to Court to testify; 2) that Mr. Calderon is remorseful and that this reflects insight along with a reduced likelihood of offending in the future; 3) that Mr. Calderon has taken steps on his own to address his sexual offending behaviour by meeting with Dr. Roughly for counselling and psychoeducational services, which further reduces the risk of reoffending; 4) that Mr. Calderon is of low risk to reoffend; and 5) that Mr.

Calderon cooperated with the authorities and provided an inculpatory statement. [ 67 ] The minimum sentence of incarceration for sexual interference when prosecuted on indictment was struck down by this Court in R v Ford, 2017 ABQB 322 . The Alberta Court of Appeal upheld this decision as reported at 2019 ABCA 87 . [ 68 ] Relevant to the availability of a CSO when sentencing Mr.

Calderon, Defence counsel urges me to consider that R v Proulx, 2000 SCC 5 at para 81 makes it clear that there are no judicially created presumptions that CSO’s are inappropriate for specific offences and that post Friesen the Alberta Court of Appeal has agreed that this approach remains valid: R v Friesen, 2022 ABCA 147 at para 50 . The question that must always be posed when considering whether a CSO should be granted is one that asks whether a CSO adequately promotes the objectives of deterrence and denunciation or is the use of a CSO disproportionately lenient such that it fails to promote those objectives.

While it is true that incarceration will generally provide more deterrence and denunciation than a CSO, this conclusion does not mean that in some instances a CSO cannot achieve those goals, particularly where the conditions are onerous, and the duration is long: Ford at para 52; Proulx at para 107 .

[ 69 ] In support of the request for a CSO, Defence counsel also relies upon the comments of Brown J in R v Shah, 2023 ABPC 43 at paras 17 – 20 . In those paragraphs, Justice Brown quoted extensively from R v Proulx , 2000 SCC 5 and the Parliamentary Secretary who introduced Bill C-5.

Based upon these references, Defence Counsel argues that Bill C-5 is a recent and clear statement from Parliament that Canada’s penitentiaries are overpopulated and that the courts must meaningfully consider alternatives to jail. [ 70 ] Defence Counsel also argues, relying upon R v Pham, 2013 SCC 15 , that I should consider the collateral consequences of an otherwise fit and proper sentence of incarceration upon Mr. Calderon’s status as a permanent resident in Canada. Mr.

Calderon, as a permanent resident, will automatically face potential immigration consequences by way of a Removal Order because of the maximum possible sentence of 14 years incarceration for sexual interference. This maximum sentence means that the offences for which Mr. Calderon are being sentenced are defined as “serious criminality” under s.36 of the Immigration and Refugee Protection Act, SC 2001, c 27 [“ IRPA ”]. Upon Mr.

Calderon being suspected as being inadmissible to Canada for “serious criminality,” under s.36 of the IRPA , a Canada Border Services Agency Officer would then decide if a s. 44 IRPA Report for an Admissibility Hearing to the Immigration Division of the Immigration and Refugee Board was required. The sentence imposed upon Mr. Calderon determines the next step available to him when addressing the Removal Order. [ 71 ] A sentence of less than 6 months of imprisonment leaves Mr.

Calderon with a substantive appeal on humanitarian and compassionate grounds at the Immigration Appeal Division of the Immigration and Refugee Board before the Removal Order is in force. Importantly, a CSO would also preserve the Immigration Appeal Division appeal because a CSO is not considered to be a term of imprisonment for IRPA purposes: Tran v Canada (Public Safety and Emergency Preparedness), 2017 SCC 50 . [ 72 ] A lawyer who provided an expert opinion on Mr. Calderon’s behalf for the purpose of considering the collateral immigration consequences of sentencing stated that, regardless of sentence, Mr.

Calderon would be referred for a Removal Order. The appeal, if available to the Immigration Appeal Division, would be Mr. Calderon’s only hope to remain in Canada. The expert was also of the view that should Mr. Calderon be removed from Canada; he would have significant difficulty if he ever attempted to return. [ 73 ] Mr.

Calderon further submits that I should consider the collateral consequences of the vigilante attack upon his person, and the posting of that attack to social media, relying upon the authority found in the Supreme Court of Canada decision in R v Suter, 2018 SCC 34 . [ 74 ] I have already referred to the letters that Mr. Calderon filed that speak positively to his character. [ 75 ] Defence counsel on behalf of Mr. Calderon did not refer me to any sentencing case authorities that involved similar circumstances of sexual interference offences, post or pre- Friesen, which involve the sexual victimization of children.

I was referred, however, to several decisions post- Friesen where a CSO was imposed as a sentence:

a) R v Friesen, 2022 ABCA 147 – the Alberta Court of Appeal concluded a CSO was a fit and proper sentence in a child pornography matter. The Crown appealed the sentence of 2 years less a day plus 24 months probation. The respondent pled guilty to possession of child pornography and admitted to uploading 6 child pornography images and 23 child pornography videos of girls between 6 and 13 years old.

After an investigation, the police found 102 images of child pornography on the respondent’s phone, depicting girls between the ages of 6 and 16, and six unique videos of child pornography depicting girls and a boy that were between 10 and 14 years old. The Crown initially sought a sentence of 13 months incarceration followed by 18 months probation.

The Court of Appeal agreed that the collateral consequences of public humiliation and the loss of a career were properly considered by the sentencing judge, and the Court of Appeal did not consider the sentence imposed to be demonstrably unfit, noting that a CSO may achieve the sentencing goals of denunciation and deterrence, particularly where the conditions are onerous and the order is for a longer duration than a candidate jail sentence would be;

b) R v Simkins, 2023 ABPC 30 – Mr. Simkins was convicted after trial for a sexual assault upon “RR”, an adult friend. The Sentencing Judge held that the 3-year incarceration starting point, which was reaffirmed by the Alberta Court of Appeal in Arcand , was not a hard and fast rule, nor a “straitjacket”, citing R v Parranto, 2021 SCC 46 at paras 32 and 36 . The Sentencing Judge considered the collateral consequences of the offender’s declining mental health and his suicidal ideations, and decided that a sentence of less that two years incarceration was warranted.

The Sentencing Judge was also of the view, based upon Proulx, that since a CSO is served in the community it will in general be more effective at achieving the restorative principles of sentencing such as rehabilitation and reparations to the victim and the community, along with the promotion of a sense of responsibility in an offender. Ultimately, the Sentencing Judge was satisfied that a CSO was not statutorily precluded, and the safety of the community would not be at risk.

The Sentencing Judge also noted that while the paramount principle of sentencing in a major sexual assault is denunciation and deterrence, the court must also consider that an offender should not be deprived of their liberty if less restrictive sanctions could be imposed. A sentence of a 2 years less 1-day CSO was imposed to be followed by 18 months probation. The Crown’s Position on Sentence [ 76 ] As I have previously acknowledged, the Crown position on sentence asks that I impose a sentence of 4 years incarceration on each count on a concurrent basis.

I would note that the sentence proposed by the Crown appears to be one that offends s. 718.3 (7) (

b) of the Criminal Code , that is, that I must impose consecutive sentences in relation to the two counts of sexual interference. [ 77 ] The Crown emphasizes that Mr. Calderon as a 22-year-old first time offender has no prior criminal record. The Crown acknowledges that Mr. Calderon’s guilty plea indicates remorse and that his guilty plea saved youthful victims from having to testify before a jury. As a youthful offender, citing Yamauchi J in R v Abreha, 2022 ABKB 830 at paras 51 – 54 , there is a need to exercise restraint in the use of imprisonment for young people who are sentenced for the first time.

Justice Yamauchi also noted the comment made by Antonio J, as she then was in R v Shrivastava, 2019 ABQB 663 to the effect that the mitigating role of immaturity is reduced when the sexual assault is not one of momentary impulse. [ 78 ] The Crown also points out in relation to the collateral immigration consequences that Wagner J, as he then was, stated in Pham at para 16 , that “these consequences must not be allowed to dominate the exercise or skew the process either in favour of or

against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not de jure special range of sentencing options where deportation is a risk.” [ 79 ] Referencing the finding that Mr. Calderon has a low risk to engage in further acts of violence, the Crown also emphasized Dr. Duska’s findings that Mr. Calderon minimized the sexual offence and has a lack of awareness of offending. [ 80 ] As to the aggravating factors associated with Mr.

Calderon’s conduct, the Crown argues that these include the nature of the sexual acts he pled guilty to committing and the harm done both emotionally and physically to each victim. The Crown stresses that Mr. Calderon’s responsibility is high and that the criminal offences that he committed had very grave consequences. [ 81 ] The Crown referenced for my consideration a number of post Friesen decisions:

a) R v EF, 2021 ABQB 272 – the offender, who was at the time of sentencing 50 years of age, was convicted after trial of one count of sexual interference and one count of child luring. The offender met the 15-year-old victim on social media. After hundreds and hundreds of messages sent between the two, they met in person. EF took the child to buy alcohol and then to a hotel where they had sexual relations. After a trip out for food, they returned to the hotel and had further sexual relations before the police arrived and arrested EF.

Burrows J reviewed a number of post Friesen decisions and imposed a global sentence of 5 ½ years, including 4 years for sexual interference. EF had a minor and unrelated criminal record;

b) R v EF, 2021 ABQB 639 , the same offender was convicted by a jury of sexual interference. The child victim was his 14-year-old daughter. The accused pinned the child’s hands above her head as she was lying on her back on the couch in the family’s living room. He then lifted up her shirt, touched her breasts, and squeezed her nipples. The incident lasted approximately one minute. Kraus J imposed a sentence of 2 years of incarceration, and at para 85, acknowledged that authorities that predate Friesen may well be of inappropriate or of limited precedential value;

c) R v Buschemeyer, 2021 ABQB 1008 – the 44-year-old offender was convicted by a jury of a series of sexual assault and sexual interference offences relating to two children. The assaults were not penetrative. The offender had a lengthy criminal record and three previous convictions for violence, including a December 2014 conviction for sexual assault. The offences also involved breaches of court ordered prohibitions relating to contact with children. Gates J imposed a global sentence of 5 years and 9 months before credit for pre-trial custody;

d) R v Tungul, 2021 ABQB 1004 – the offender was a 31-year-old woman who was convicted after trial of sexual assault and sexual interference. She was the victim’s grade 9 music teacher, and the victim was a 15-year-old Indigenous boy. The offender had performed oral sex on the Complainant in her car. The offender had no prior record, but there was an obvious breach of trust. Mitigating factors included remorse coupled with insight.

The mitigating factor of the offender’s good character, as supported by several letters, had low probative value in mitigation of sexual assault offences because previous good character is common in sexual assault cases: R v Misay, 2021 ABQB 485 , at paras 136 – 131 . The evidence of good character, however, does tend to support rehabilitative sentencing objectives: Misay , at para 131 . The offender had resigned from her job, which Bercov J treated as a significant collateral consequence. A sentence of 32 months incarceration was imposed;

e) R v Power Romero, 2023 ABCJ 110 - The 28-year-old, who was convicted at trial and was 25 years old at the time of offending, pretended that he was younger than his age. At first, he portrayed himself as a 21-year-old, then as a 19-year-old. He sold, for a period of months, cigarettes, vapes and alcohol to junior high school students. He connected to and communicated with underage children using SnapChat. He befriended a 13-year-old girl through his business and eventually he had sexual intercourse with her. On a second occasion when she was 14, he touched her thigh.

The Sentencing Judge said that the aggravating factor was the vaginal intercourse with a 13-year- old girl, and the mitigating factor was the FAOS report, which suggested a low-level of recidivistic risk. A sentence of 4 ½ years was imposed, consisting of 4 ½ years for the count involving sexual intercourse and one month concurrent for the second count involving the touching. [ 82 ] In addition to the guidance provided by the Alberta Court of Appeal in Arcand , the Crown also referred me to guideline sentencing cases as follows:

a) R v Sandercock, 1985 ABCA 218 – This appellate decision involved a sentence appeal by the Crown from a sentence of 3 years incarceration following a guilty plea by the offender to a count of sexual assault. The offender, who was intoxicated, forced a 16-year-old stranger into a secluded location and forced her to submit to sexual intercourse. The accused was 26 years of age, had a history of drug and alcohol use, and had a minor criminal record. He pled guilty, but only after the victim had given evidence at a Preliminary Inquiry. The appeal was allowed and a sentence of 4 ½ years was imposed.

In allowing the appeal, the Court of Appeal indicated that the decision of the panel was one that had been approved by a majority of the judges of the Court and was considered to be a guideline. The Court of Appeal concluded that the starting point sentence for a major sexual assault is 3 years imprisonment. This starting point assumes an accused of previous good character with no previous criminal record who committed a sexual assault that was not premeditated in the sense of involving a planned and deliberate attack.

A guilty plea is a special and major mitigating factor, not only as relevant to demonstrated remorse, but for “sparing the victim the need to testify or wait to testify, or by waiving some of his constitutional rights in deference to expeditious justice.”

b) R v Hajar, 2016 ABCA 222 – Importantly, this was a reserved judgment by a five-member panel of the Alberta Court of Appeal . I mention this because, as was fully explained by the Alberta Court of Appeal in Arcand , sentencing Memoranda of Judgment have little weight as precedential value because such sentencing Memoranda do not circulate between members of the Court and do not follow the Court of Appeal’s reconsideration procedure.

Reasons for Judgment Reserved, such as the judgment in Hajar , which was a reserved judgment by a five-member panel, have entirely different considerations and are therefore binding and precedential. In Hajar , the 20- year-old offender met the female complainant who was 14 years old online. The offender convinced her to send him a topless photograph and he discussed the sex acts that he wished to engage in with her. On their fourth meeting, the offender drove the victim to a parking lot where she performed fellatio. A citizen called the police who found the offender and the victim in the back seat.

The offender pled guilty and was sentenced to 15 months for sexual interference and 3 months consecutive for luring followed by 3 years probation. The Crown

and Defence appealed. The Court of Appeal held that a fit sentence was 2 ½ years imprisonment for sexual interference and 1 year consecutive for luring but did not increase the sentence due to the length of the time taken to consider the appeal. The Defence appeal was dismissed. The Court of Appeal confirmed a 3-year incarceration starting point for major sexual interference offences by adult offenders. This starting point applies irrespective of the child’s ostensible or de facto consent.

The Court of Appeal found that major sexual interference is inherently harmful and inherently exploitive and carries with the offence the likelihood of serious psychological or emotional harm to the victim. The Court said that all sexual acts between a child and an adult outside the close-in-age exceptions are inherently exploitive such that the absence of exploitation is not a mitigating factor. Instead, exploitation that goes beyond that inherent in the commission of a major sexual interference is an aggravating factor. Similarly, like major sexual assault, a major sexual interference is inherently violent.

Gratuitous violence is aggravating. The Court noted the following non comprehensive list of aggravating factors: 1) Multiple acts; 2) Use of drugs, alcohol or other substances on the child to facilitate the offence; 3) Additional physical harm from the offence; 4) Psychological or emotional harm from the offence; 5) Targeting of a particularly vulnerable child; 6) Additional degradation of the child; 7) Pregnancy or STD as a consequence of the offences; and 8) Breach of trust or authority.

The Court of Appeal also identified an incomplete list of potential mitigating factors as follows: 1) Guilty plea; 2) Mental illness or disability of the offender; and 3) Remorse. [ 83 ] In addition to the sentencing authorities that the parties referred me to, I have considered additional sentencing authorities to ensure that any sentence I impose is one that is properly informed by the principle of parity, while at the same time recognizing that sentencing is an individualized process.

In particular, I have considered the numerous sentencing authorities referred to by the Alberta Court of Appeal in R v Sheppard , 2023 ABCA 381 , including the Schedules of sentencing authorities from Alberta and Ontario as compiled by Wakeling JA and the specific sentencing decisions referred to by Feehan JA.

I would also note that the offences I am considering postdate the Supreme Court of Canada’s decision in Friesen and it is therefore not necessary for me to consider the dispute as between Feehan JA and Crighton JA regarding the effect of R v MAC, 2023 ABCA 234 when considering pre- Friesen sentencing decisions. [ 84 ] I have also read and considered Devlin J’s decision in R v Collins, 2023 ABKB 134 . I have found this decision to be instructive while at the same time recognizing that this sentencing decision is not completely on all fours with my present sentencing consideration.

I will, however, briefly summarize this decision. [ 85 ] Mr. Collins pled guilty to four sexual offences against two children. At the time of the offences Mr. Collins was between 29 and 30 years of age. The offences in relation to each victim involved luring and sexual interference. The Crown and the Defence both agreed to reduce their sentencing positions by one year because of the conditions of pretrial detention. The first victim, LG, was 15 years old at the time of the offence and the offence involved sexual intercourse on what appears to be four occasions.

The second victim, DL, was 14 years of age and sexual intercourse occurred on multiple occasions.

After adjusting for totality, Justice Devlin concluded that 3 years incarceration for the sexual interference on LG was appropriate and that 3.5 years consecutive incarceration for the offence involving DL was also appropriate. [ 86 ] In coming to this conclusion Justice Devlin, at para 44 noted that “starting points are not binding authority as to the requisite sentence, but rather provide ‘useful tools because they convey to sentencing judges an appreciation of the gravity of the offence....[a]nd offer judges a place to begin their thinking’ ”: Parranto , at para 44 ; R v Stewart, 2021 ABCA 79 at paras 41 – 42 ; R v Quintero-Gelvez, 2023 ABCA 64 at paras 16 – 20 . [ 87 ] Justice Devlin at para 45, went on to suggest that cases such as R v EJB, 2018 ABCA 239 , R v DSC, 2018 ABCA 335 , and R v EF, 2021 ABQB 272 , continue to provide “strong support” that sentences for the unlawful sexual touching of a child that includes oral or penile intercourse should most often be in the range of three years where significant mitigating or aggravating features are absent.

While I agree with Devlin J and agree that nothing from Friesen would suggest that sentences for sexual interference should be lowered, in my view it is likely that the starting point guidance provided by Hajar might eventually on reconsideration be adjusted upwards. I say this because it is difficult to ignore the comment made by the Supreme Court of Canada in Friesen to the effect that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.

What Sentence Should be Imposed upon Mr. Calderon as Fit and Appropriate? The Gravity of the Offences

[ 88 ] It would be difficult to convincingly overstate the gravity of the present offences. The two sexual interference offences as perpetrated by Mr. Calderon as against teenaged children are objectively and not abstractly serious. While the degree of intrusion, which involves the penile penetration of the vaginas of both victims speaks to the physical consequence of the loss of bodily integrity and personal autonomy, I might fairly observe that the bodily intrusion as endured by each victim, pales in comparison to the psychological harm suffered by each.

I would also note that KR, as a victim, suffered not only the incident of sexual intercourse, but was previously victimized by Mr. Calderon approximately one month earlier when he kissed KR and touched her breasts and directly touched her vagina by placing his hands in her pants. Mr. Calderon also failed to use a condom when he engaged in sexual intercourse with KR, which subjected her to the risk of pregnancy and sexually transmitted disease. Mr.

Calderon engaged in acts constituting major sexual interference in relation to each victim. [ 89 ] As the Supreme Court of Canada stressed in Friesen, there must be a renewed emphasis on personal autonomy and the freedom of children to develop to adulthood without the damaging effects of sexual interference from adults, which means that judges as sentencers should strive to understand the psychological harm that flows from loss of such autonomy, sexual integrity, dignity, and equality. [ 90 ] The victim impact statements as filed in relation to this matter bring the harm, particularly the long-term psychological harm, sharply into focus.

I will not repeat everything that I stated earlier. [ 91 ] Both victims have required psychological counselling. Both have suffered academically. Both have suffered from an inability to sleep. KG’s mother says that she has struggled to make sure that KG “stayed alive,” and KR’s mother has spoken of KR coping by utilizing cutting behaviours. It would be fair to summarize that each child victim has suffered severe and long lasting deleterious psychological impact. [ 92 ] As Friesen also cautions, the psychological impact of Mr.

Calderon’s offending has had broader implications, not only societally, but upon the nuclear families of both victims. KR’s mother has resorted to personal stress leave and has required regular counselling. Mr. Calderon’s crime also has had negative impacts on KR’s 5-year-old brother. KG’s mother spoke to similar psychological harm to KG’s nuclear family, including an indication that none of the family members could be considered to be the same following the sexual interference. [ 93 ] The grave and serious nature of these instances of sexual interference could not be clearer.

The Degree of Responsibility of the Offender [ 94 ] While Mr. Calderon was not in a position of trust in relation to either victim, and he was of a young and immature age that does not involve a background of criminal offending, I find referencing Justice Antonio’s words in Shrivastava , as she then was, that the mitigating effect of the offender’s immaturity is reduced when the sexual interference is not one of momentary impulse. [ 95 ] Important to my consideration here is Mr.

Calderon’s use of an alias when committing the sexual interference offences combined with his decision to pretend to be a high school student while committing these offences. The use of the alias and the effort to pretend to be a high school student signal to me not only an awareness of his proposed wrongdoing, but also that Mr. Calderon planned to dupe his teenaged child victims into physical compliance in relation to the sexual acts that constitute the sexual interference offences. These are indications that his offending was somewhat predatory. I would also note that Mr.

Calderon had the necessary time between the physical acts of offending, and as between victims, to reflect upon his actions; however, he chose to persist. These were not acts of compulsion. This also speaks to his degree of responsibility. Aggravating Factors [ 96 ] The following are the aggravating factors: 1) The Court of Appeal in Hajar , and the Supreme Court of Canada in Friesen, have directed the sentencer to consider the degree of psychological harm. I have done so. At the same time, care must be taken not to double count the factors because psychological harm is implicit in the offences themselves.

I have not engaged in such double counting; and 2) As I have just noted, the actions of Mr. Calderon were somewhat calculated and predatory. Not only did Mr. Calderon use an alias to avoid detection, but he used the ruse of being a younger high school student to garner compliance with his sexual demands. It was also Mr. Calderon who suggested to KR that he did not want money in return for the requested vaping materials; but, instead, that he wanted a blow job. This brings his initial intentions firmly into focus. Mitigating Factors [ 97 ] The following are the mitigating factors: 1) The guilty pleas that Mr.

Calderon have tendered indicate an acceptance of responsibility for the offences, but also importantly prevent the teenaged child victims from having to testify. This is a factor that I regard as greatly mitigating; 2) The determination that Mr. Calderon is at low risk of reoffending. Although the evidence indicates that Mr. Calderon has a poor understanding of the impact of his sexual interference crimes upon his victims, I do not regard this as an aggravating factor in the same way that the courts do not regard a lack of remorse as aggravating: R v Ambrose, 2000 ABCA 264 . Instead, Mr.

Calderon’s lack of understanding of the impact of his crimes speaks instead as to what might be required by way of treatment to ensure that he obtains some understanding and to ensure proper rehabilitation; 3) I accept that Mr. Calderon is remorseful;

4) Mr. Calderon has taken some steps on his own initiative for treatment and to obtain insight into his offending; and 5) Mr. Calderon was cooperative with authorities and the Court. Collateral Consequences [98] Collateral consequences include any consequence arising from the commission of an offence, the conviction for an offence, orthe sentence that impacts the offender.

Although collateral consequences are not necessarily aggravating or mitigating, because they donot relate to the gravity of the offence or the level of responsibility of the offender, they do impact upon the offender’s personalcircumstances and are therefore relevant to the consideration of the principles of individualization and parity.

Collateral consequencescannot be used to reduce a sentence to a point where it becomes disproportionate to the gravity of the offence or moral blameworthinessof the offender and collateral consequences includes violence at the hands of non-state vigilante actors: Suter at paras 47 – 57. [99] In the present circumstances, I take account of the vigilante violence suffered by Mr. Calderon and adjust his sentencedownwards from what would have otherwise been appropriate. [100] In relation to Mr.

Calderon’s request that I consider the collateral consequence of his likely pending Removal Order and thepotential loss of his pending immigration appeal, I recognize that I must not impose an inappropriate and artificial sentence to avoid acollateral consequence. As mentioned earlier, those consequences must not be permitted to dominate or skew the process such that thereis a separate sentencing regime: R v Pham, 2013 SCC 15 at paras 15 – 16.

In this case, based upon the principles of proportionality andparity, a global sentence involving either a conditional sentence, or a period of incarceration of less than 6 months, are not propersentencing options because the resulting sentence would be unfit. The Good Character Letters [101] The character letters have some weight in the sense that they do not cause me to have some pause as to whether Mr. Calderonshould be considered as treatable. He is treatable. [102] Beyond this consideration, the letters do not offer much by way of mitigation.

As Crighton JA stated in Sheppard at para 393,the character letters speak to a character that the writers knew, but the letters do not address the character of the offender as revealed inhis offending. Borrowing from Justice Crighton’s reference to R v Felix, 2019 ABCA 458, the authors of the letters clearly do not knowMr. Calderon as well as they thought they did. As has also been observed, when considering sexual offences involving children, sexualmisconduct most often occurs in private and out of the discerning eye of public scrutiny.

The Sentences to be Imposed [103] As I have noted, at a minimum, Hajar directs that I should direct my mind by starting at a 3-year starting point as to sentence. [104] While starting points are not sentencing straitjackets, they do provide some focus amongst the innumerable cases that I havereviewed in an effort to ensure sentencing parity. As I said earlier, Hajar offers a useful place for me to begin my thinking. [105] As I have also previously noted, s. 718.01 of the Criminal Code directs that I must prioritize deterrence and denunciation incases involving the sexual interference of child victims.

I must also under s.718.3(7)(

b) of the Criminal Code impose consecutivesentences in relation to each count of sexual interference. [106] The purpose of deterrence is to discourage individuals from reoffending. There are two types of deterrence. Specific deterrenceis directed at the individual being sentenced, and it works to specifically deter that person from offending in the future. Generaldeterrence, on the other hand, sends a preventative message to the public that serves to prevent offending in the first place.

Denunciation,on the other hand, communicates a collective statement of society’s condemnation of the behaviour, meaning that an offender “should bepunished for encroaching on our society’s basic codes of values as enshrined within our substantive criminal law”: R v M(CA), (SCC), [1996] 1 SCR 500 at para 81. [107] As to Mr.

Calderon’s request that I consider a CSO, this sentencing option is not available for those offenders who otherwiseshould be appropriately sentenced to a penitentiary term: R v Fice, 2005 SCC 32. [108] In my view, considering all the aggravating, mitigating, and collateral factors, along with the sentencing authorities that I havereferred to, the sentence that should be imposed in relation to count 6 involving KG as a victim of sexual interference is one of 2 yearsincarceration. I say this, without limiting what I have previously said, that I am mindful of Mr.

Calderon’s young age, hisremorsefulness, the absence of criminal record and predicted low future risk, along with an awareness of the collateral consequences asto his immigration status. His guilty plea and the vigilante violence perpetrated upon him figure predominately in my acceptance of 2years incarceration as an appropriately restrained sentence. Had Mr. Calderon only victimized KG it would have been appropriate for meto further consider the requested CSO.

At the same time, I do acknowledge that I have found that there are predatory aspects to Mr.Calderon’s offences. [109] In relation to the offences involving KR, I would note that the offences involving KR did not involve a singular incident butinstead the sexual interference of her body on two separate occasions.

In relation to this second offence as found in count 4, a fit andproper period of incarceration is 3 years incarceration consecutive; however, I would reduce the overall sentence for this Count by 1 yearbased upon the principle of totality. [110] The overall resulting sentence of 4 years incarceration is one that in my view is appropriately restrained given Mr. Calderon’syoung age, low risk to reoffend, and the lack of a prior criminal record.

[ 111 ] I also make the following ancillary orders as agreed to between the parties: 1. An Order requiring Mr. Calderon to provide a sample of his DNA for inclusion to the DNA data bank pursuant to s. 487.051(2) of the Criminal Code ; 2. An Order requiring Mr. Calderon to comply with a SOIRA order for twenty years pursuant to

section 490.012 and 490.013(2) (

b) of the Criminal Code ; and 3. An Order prohibiting communication with respect to the named complainants KG and KR while Mr. Calderon is in custody pursuant to s.743.21 of the Criminal Code . [ 112 ] I would direct that the parties further address me as to whether a weapons prohibition order ought to be made under s.109 of the Criminal Code , and the appropriateness of a victim fine surcharge. Heard on the 23 rd day of June, 2023 and the 2 nd day of October, 2023. Dated at the City of Calgary, Alberta this 3 rd day of January, 2024. D.A. Labrenz J.C.K.B.A.

Appearances: Donna Spaner Alberta Crown Prosecution Service for the Crown Jillian Williamson Alberta Legal for the Accused _______________________________________________________ Corrigendum of the Sentencing Judgment of The Honourable Justice D.A. Labrenz _______________________________________________________ Para 70, line 1: R v Pham , 2013 SCC 15

Para 81(b), line 1: R v EF , 2021 ABQB 639 Para 81(b), line 6: approximately one minute. Kraus J imposed a sentence of 2 years of Para 87, line 2: R v DSC , 2018 ABCA 335