SELECTED CASE LAW
In 2007 ABCA 135, Ms. B, a 36-year-old woman, pleaded guilty to sexually touching a child and distributing child pornography.
Ms. B had cerebral palsy and low self-esteem that made her vulnerable to exploitation. Ms. B had met Mr. T through a BDSM (bondage-discipline sadism-masochism) themed chatroom. She entered into the role of Mr. T’s submissive, while he was dominant and groomed her over time. She performed sexually via webcam for Mr. T. He lived in a different province but he would visit her once a year. Mr. T eventually suggested that they add children to their sexual activity, which Ms. B initially resisted but feared being punished if she didn’t comply with him. Mr. T began sending her images of child pornography and told her to make up stories involving sexual contact with children. She said she complied because did not want the relationship to end. Mr. T convinced her that she should provide her son with oral sex to help him release sexually, stating the boy would seek release elsewhere and “could be harmed in the process.” On one occasion she placed her son’s penis in her mouth. She also sent nude and exploitative images of her son to Mr. T via a webcam.
Mr. B eventually told someone about this who reported it to the police.
At trial, she was sentenced to two years less a day served in the community and three years’ probation.
The Crown appealed the sentence.
The appeal court found the sentence to be unfit, noting the trial judge under-emphasized certain factors and didn’t properly characterize other factors. The court found that Ms. B had committed crimes that “are serious in their own right in terms of the harm caused because both involve abuse of one of the most vulnerable groups in our society, children”, and that her behaviour was at the higher end of the seriousness of each offence, particularly as the parent of the abused child. Conversely, the court recognized her unique personal circumstances and the degree of responsibility was not at the high end.
The defence argued that because Ms. B had not engaged in the oral sex for her own gratification, it should mitigate the seriousness of the offence. However, the appeal court stated:
[…] since the mother pled guilty to sexual interference, it follows that she accepts that her actions were “for a sexual purpose”. Whether the gratification was her own or that of her boyfriend is essentially irrelevant. Certainly, from the perspective of the victimized child, it makes little difference that someone is perpetrating the abuse at the behest of another. Indeed, it arguably makes it more harmful knowing that the mother had a choice and chose to do this for the sexual gratification of a man living thousands of miles away.1
The Crown also appealed the decision to exempt Ms. B from being registered as a sex offend-er, which is mandatory except under special circumstances, but it was dismissed.
The Court held that registering her as a sex offender would increase her vulnerability to exploitation and was grossly disproportionate to the public interest in protecting society from Ms. S, due to her personal circumstances. The court stated:
An exceptional aspect of this case is the vicious circle that arises from the respond-ent’s psychological profile. Her feelings of worthlessness and anticipated negative evaluation cause her to isolate herself. Yet that very isolation makes her vulnerable to the kind of exploitative relationship that eventually led to her crimes. Her tendency to feel rejected, combined with the stigma attached to a 20 year reporting requirement, could foster her lack of self-esteem, making her vulnerable to the very sort of relationship she must avoid. This unusual psychological dimension demonstrates the disproportionate impact of a [sex offender registration] order on her. It also detracts from her potential rehabilitation and reintegration into the community.
In regards to the distribution of child pornography, the court stated:
[…] 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 net-work 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.2
The appeal court held that the sentencing judge did not properly take this into account. The trial judge had also made a mistake finding the lack of commercial gain as a mitigating factor, treating the two offences as part of a single event, and over-emphasizing her disability as a reason she could not be imprisoned.
The sentenced was increased to 18 months in jail. Additional orders included a weapons prohibition, a DNA order, and a prohibition from being near children.
Also see: 2007 ABCA 61 (Appeal),  SCCA No 136 (Leave to Appeal), 2006 ABQB 533 (Sentencing).
1 2007 ABCA 61 at para 23.
2 2007 ABCA 135 at para 16.