2002 ABCA 179

In 2002 ABCA 179, Mr. He was found guilty of making and possessing child pornography. A pos-session charge was stayed due to the Kienapple principle.

Mr. He was sentenced to five years’ imprisonment at trial. Additional orders included a DNA sample.

Mr. He appealed both his sentence and the DNA order. He argued that his co-accused, Mr. T and Mr. Hu, had pleaded guilty as well and but were only sentenced to a 15 months conditional sentence and 18 months in jail respectively. Therefore, on the principle of parity he should have received a similar sentence.

The three men had begun an internet pornography company. They had placed an ad looking for models who were 18 or over. Three teenaged roommates, aged 15, 16, and 17, were in financial need and replied to the ad. Mr. He did not verify their ages and arranged for Mr. Hu to take photographs of them in the nude and engaging in sexual activity. Several hundred photographs were taken. At one-point Mr He became aware of the age of the roommates. Mr. T provided the space for the photos to be taken. The Court found that Mr. He was the primary actor in the arrangement. The two other co-accused cooperated with the authorities, which was a mitigating factor in their sentence, while Mr. He did not.

Mr. He tried to argue the complainants’ ages should be taken into consideration. The Court state:

[…] and we also acknowledge that the young persons are not at the extremely young age of the spectrum, that is less than 12 for example. Were this the case, those would be aggravating factors. But the reverse does not follow. Simply be-cause the young persons were at the higher end of the protected age category does not make this a mitigating factor. The protection afforded by the legislation extends to all children under 18, no matter their age, and rightly so. Society has recognized the legitimate need to safeguard all children in this category from exploitative con-duct. Children are not adults and cannot be expected to exercise judgment as if they were. We recognize this in many other instances where Parliament and provincial Legislatures have drawn lines to protect those in a certain age category.

A higher sentence than his co-accused was warranted but the Court of Appeal found a five-year sentence was too harsh and reduced it to three and a half years.

Criminal Offence(s): Child Pornography Offences