2008 ABQB 679

In 2008 ABQB 679, Mr. S, a 22-year-old man, pleaded guilty to distributing child pornography. At sentencing he challenged the constitutionality of the mandatory minimum sentence and sought an exemption from being registered as a sex offender, arguing the content of the photos were sexual but the intention for posting them were not.

Mr. S was 20 years old when he began speaking with a 16-year-old girl online, who claimed to be over 18 years old. They eventually met and had consensual sex and took photos of each other having sex. At that time Mr. S was aware of the girl’s actual age. After the couple broke up, Mr. S posted comments about her on his Nexopia page listing her full name, age and offering her photos to anyone who asked for them. He also posted images of his own wrists with cut marks on them. Ms. X reported this to Nexopia, who took the text down. Two days later Ms. X found Mr. S had posted nude images of her on Nexopia and offered to post more “showing more.” She again contacted Nexopia, who took the images down. Mr. S posted the images up again along with Ms. X’s personal information. Ms. X contacted the police and told Mr. S not to contact her. He sent her threatening messages to her and posted threatening messages on his Nexopia page and posted a link to more nude photos of her. A search of Mr. S’ computer un-covered the images that had been posted on the Nexopia profile. Including her full name and age was considered an aggravating factor.

The court also stated:

In the present case there was planning and deliberation. [Mr. S] acted with intention to embarrass, humiliate and intimidate the complainant. He succeeded. He al-so exposed her to repeated redistribution of the images and a possible risk of danger from those who viewed them. [Mr. S] has not demonstrated a true understand-ing of the harm to the complainant which he has caused.[1]

Considering the seriousness and deliberateness of Mr. S’ actions, as well as his lack of remorse, the court did not find the mandatory minimum sentence to be unconstitutional and sentenced Mr. S to one-year imprisonment and two years’ probation. It also found that his registration as a sex offender was appropriate as registration does not depend on the seriousness of the crime, it is mandatory for certain offences save certain exemptions. Mr. S’ interests were not grossly disproportionate to the public interest of investigating sexual crimes and he was not exempted from registration. It was also ordered that Mr. S submit a DNA sample, that the computer equipment used in the offence be forfeited, and the photographs be destroyed.

2008 ABQB 679 at para 92.

Criminal Offence(s): Child Pornography Offences