SELECTED CASE LAW
ALBERTA:
In 2017 ABCA 187, Mr. K, a 39-year-old man, pleaded guilty to multiple accounts of sexual interference, multiple sexual assaults, producing child pornography, possessing child pornography and voyeurism.
Mr. K was a teacher, coach and mentor for Big Brothers and Big Sisters. Mr. K gained access to one of the children, Mr. JF, through his affiliation with Big Brothers as a mentor. Mr. K’s sexual interference with Mr. JF began when Mr. JF was nine years old and occurred over several years, continuing after the Big Brothers program terminated their official mentorship. This included multiple sexual assaults when Mr. JF was between the ages of 11 and 15, occurring at times when Mr. K was providing child care or playing other supportive roles for Mr. JF. The occurrences of interference increased in severity over several years and included producing child pornography.
The sexual assault and producing child pornography charges were in relation to a second child, Mr. JTE. Mr. K took photos of the child’s penis and anal area and touched the child to greater expose his anus while he was sleeping.
There was one incident of sexual interference when Mr. K was babysitting a third child, Mr. JY, when the child was nine years old.
Mr. K was in a position of trust and authority with Mr. JF, Mr. JTE and Mr. JY at the time of the abuse. Mr. K further admitted to voyeuristically filming three change rooms approximately 20 times in 2012 which included 45-50 videos that were considered child pornography.
The trial judge sentenced him to a 12-year global sentence. Additional orders included an order to provide a DNA sample, be registered as a sex offender for life, a twenty year limitation on his contact with children, the victims, and from working or communicating with children, as well as a ban from using the internet or other digital networks unless supervised by an adult; a communication ban with the complainants, a weapons prohibition, and a victim surcharge fee.
At the court of appeal, Mr. K appealed his global sentence of 12 years’ imprisonment, arguing it failed to reduce his sentence for “his early guilty plea, remorse, counselling, favourable FAOS and Pre-Sentence Report. [The trial judge] also failed to deduct the 6 months he allowed for the period that the appellant was on virtual house arrest for the two years prior to sentencing.” The court’s majority, Justice Merger and Justice O’Ferall, held that the trial judge properly ac-counted for most of the disputed factors, however, they found the trial judge did not fully ac-count for the time Mr. K was on virtual house arrest while on bail, therefore imposing an unduly harsh sentence. Taking these factors into account, as well as the lack of additional violence in Mr. K’s actions, the court reduced the global sentence to nine years. Justice Martin, in dissent, would have called for a global sentence of 10 years, taking into consideration Mr. K’s early guilty plea, remorse, and the trial judge’s failure to consider the totality of the final sentence, stating:
[…] in my view, the global sentence of 12 years is unduly harsh and long in the circumstances. I say this after considering the numerous cases identified by the Crown and appreciating society’s growing recognition of the seriousness of sexual offences against children as reflected through this court’s admonishment of child pornography and sexual interference, which activities are inherently harmful and impose clear and present danger to children.
In 2018 ABPC 36, the complainant, Mr. JF, applied to have the publication ban in relation to the charges against him rescinded. He argued it would help him with his rehabilitation and help other victims of sexual assault who could then identify him and contact him for support if his name was known publicly. The court held that it did not have the jurisdiction to remove the ban on the child pornography offences, as it is mandatory and non-discretionary, but could rescind the ban on the sexual assault charge related to Mr. JF if there was a material change in circumstances. Counsel for the accused argued that rescinding the ban could hurt its client, how-ever, the court noted that the ban was not to protect the accused but the victim. The ban for the sexual assault charge was lifted because Mr. JF was an adult now and wanted the ban rescinded so he could “tell his story”.
Also see: 2016 ABPC 158 (Trial); 2018 ABPC 36 (Application to have publication ban rescinded).
[1] 2017 ABCA 187 at para 6.
[2] 2017 ABCA 187 at para 39.
Criminal Offence(s): Sexual Assault ; Child Pornography ; Voyeurism ; Sexual Interference