SELECTED CASE LAW
ALBERTA:
In 2013 ABQB 546, Mr. S was convicted on 23 counts of sexual offences against his biological daughter, Ms. P, from when she was 11 years old to 16 years old. This included sexual interference, invitation to sexual touching, sexual exploitation, incest, child pornography offences, and sexual assault.
Mr. S would sexually touch his daughter and have intercourse with her. In one incident, shortly before the victim turned 15, Mr. S learned that his daughter was sending nude photographs of herself to online contacts. After that point Mr. S then demanded that his daughter send him the nude photos and took nude photos of her. When Ms. P’s mother moved out, Mr. S became the sole guardian and the sexual assaults became much more frequent. At one point, Ms. P tried to report the abuse and then recanted her statement, for which Mr. S punished her with a serious sexual assault on the side of the road on the way home from school. Ms. P and her younger sister were removed from his care in 2009 but Ms. P still sent him nude photos to his cellphone. Ms. P and Mr. S also had one unsupervised visit at a gas station where additional child pornography of Ms. P was created.
At trial, Mr. S claimed that his daughter fabricated stories and set him up by placing porno-graphic images of herself on his cell phones and in his online album. He argued that she did this because he had cut off her phone use. The Court noted, “As [the victim] had very few friends at school her phone was her only connection to the outside world, and she relied on it for the ability to phone, text, gain access to the internet, Hotmail, Facebook, and online friends. [She] had her phone with her at all times, and considered it her lifeline.”[1] Photos of Mr. S’s daughter, which met the definition of child pornography under the Criminal Code, were found on Mr. S’s phone and the Court rejected his claims that he was unaware of the photos.
In 2013 ABQB 506, 10 of these convictions were stayed due to the Kienapple principle.
Mr. S was sentenced to 12 years’ imprisonment and the sentencing judge stated:
[…] the initial sentencing response of the courts to the child pornography provisions was relatively lenient. As the courts and society as a whole are increasingly becoming aware of the extent and effects of such abuse of children, the level of sentencing should be responsive to the gravity of the crime thus revealed.[2]
Aggravating factors included Mr. S being in a position of trust, the age of his daughter, the abuse occurring in the home, the length of the abuse, the unprotected sexual intercourse, the continuation of the abuse after she had been put in foster care, the large number of abusive images that were created and retained, the accused’s punishment of the complainant for attempting to report the abuse, and Mr. S’ failing to take responsibility for the abuse. In regard to the photographs the court noted:
Parliament and recent authorities are constantly cautioning the Courts not to take the seeming innocuous acts of taking and storing photographs lightly. Sentences for these offences truly need denunciation as the primary objective.[3]
Due to procedural issues a new trial was ordered in 2016 ABCA 194. The defence counsel had refused to conduct a judge and jury trial due to the financial state of his client despite his client wanting to.
Also see: 2016 ABCA 194 (Appeal); 2014 ABCA 67 (Application for judicial interim release pending appeal); 2013 ABQB 546 (Sentencing); 2013 ABQB 506 (Kienapple application); 2013 ABQB 322 (Trial).
[1] 2013 ABQB 322 at 38.
[2] 2013 ABQB 546 at para 15.
[3] 2013 ABQB 546 at para 26.
Criminal Offence(s): Sexual Assault ; Child Pornography ; Invitation to Sexual Touching ; Sexual Exploitation ; Sexual Interference