SELECTED CASE LAW
ALBERTA:
In 2018 ABCA 235, the Crown appealed Ms. W’s, a 42-year-old woman, sentence for sexually assaulting her four-year-old son and making and distributing pornography of him. She had plead guilty to the offences. The Crown argued she should have had a longer sentence imposed.
Ms. W met her boyfriend Mr. C, who lived in the United States, on the internet. He pressured her to sexually assault her son, take photographs of the assault and send them to Mr. C. The police found 26 images of sexual exploitation and assault of the boy, along with other forms of child pornography on Mr. C’s computer. Following Mr. C’s grooming, Ms. W expressed willing-ness to participate in sexual abuse against her child and told Mr. C she was reading stories about pedophilia. The two discussed involving the child in their sex life and shared child pornography with each other, involving both boy and girl children. Police in the United States found Mr. C had been uploading child pornography files and arrested him, where they discovered the images of Ms. W’s abuse of her son. Ms. W attempted to delete the images from her devices, but the police were able to recover some of the files.
The majority in the appeal described the case as “another tragic case where a mother was induced to abuse her young child to satisfy her boyfriend’s perverse sexual urges” (para 1). At trial, the judge found mitigating factors to include her social isolation due to physical disfigurement and psychological vulnerability, the losses she experienced including having her child removed from her care, the loss of her career in child care, public shame and notoriety. Psycho-logical reports found she had an extremely low risk of committing similar crimes in the future. However, the offences were egregious and serious, particularly because Ms. W was in a position of trust. Aggravating factors included the abuse happening in the home, the young age of the child, the likelihood of serious harm to the child, and Ms. W’s attempts to destroy evidence.
At trial, she was sentenced to three and a half years in jail, additional orders included a life-time registration as a sex offender, a 10-year ban on being near children, limitations on using the internet, and a no contact order with her son, unless he was with his guardian.
On appeal, her sentence was not found to be disproportionate. However, the judge had erred in describing the separation of Ms. W from her child as mitigating, but this error did not impact the sentence. The sentence was not changed.
Criminal Offence(s): Sexual Assault ; Child Pornography