R. v. Keough (J.A.),

• Judge: Berger, Paperny and Slatter, JJ.A.
• Neutral Citation: 2012 ABCA 14
• Citation: (2012), 519 A.R. 236,2012 ABCA 14,[2012] 5 WWR 45,519 AR 236,57 Alta LR (5th) 68,281 CCC (3d) 476,[2012] AJ No 10 (QL),539 WAC 236,(2012), 519 AR 236,[2012] A.J. No 10 (QL),539 W.A.C. 236,519 A.R. 236
• Date: 12 January 2012
• Court: Court of Appeal (Alberta)

R. v. Keough (J.A.) (2012), 519 A.R. 236; 539 W.A.C. 236 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. JA.057

Her Majesty The Queen (respondent) v. Jason Andrew Keough (appellant)

(1103-0154-A; 2012 ABCA 14)

Indexed As: R. v. Keough (J.A.)

Alberta Court of Appeal

Berger, Paperny and Slatter, JJ.A.

January 12, 2012.

Summary:

The accused was charged with two counts of possession of child pornography, two counts of making child pornography, engaging in voyeurism, copying voyeuristic materials and touching a young person for a sexual purpose while being in a position of trust or authority.

The Alberta Court of Queen's Bench, in a judgment reported (2010), 501 A.R. 26, found the accused guilty of two counts of possession of child pornography, engaging in voyeurism and copying voyeuristic materials. The accused was acquitted on the two counts of making child pornography and touching a young person for a sexual purpose.

The Alberta Court of Queen's Bench, in a judgment reported (2011), 512 A.R. 1, sentenced the accused to a total sentence of 27 months' imprisonment, comprised of nine months' imprisonment for each possession of child pornography (consecutive) and nine months' imprisonment for each voyeurism count (concurrent to each other, but consecutive to the child pornography sentences). The court also made a DNA sample order, a 10 year registration order under the Sex Offender Information Registration Act, a 10 year prohibition respecting being in a position of trust or authority respecting children under age 16 and forfeiture of all items seized from the accused's home. The accused appealed against sentence.

The Alberta Court of Appeal, Paperny, J.A., dissenting, allowed the appeal to the limited extent of making the consecutive nine month sentences for possession of child pornography concurrent, reducing the total sentence to 18 months' imprisonment. As recommended by the Crown and the accused, the court imposed two years' probation with conditions.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sentences - [See Criminal Law - Topic 5803 ].

Criminal Law - Topic 5803

Sentencing - General - Consecutive sentences - The accused was convicted of two counts of possession of child pornography - He was a youth worker/counsellor who allowed young people to use his spare bedroom for consensual sex - In separate instances one year apart, 15 and 16 year old girls had consensual sex with their boyfriends knowing that their activity was being video-taped - In both instances, the girls expected their activities to remain private (legal private use materials), but the boyfriends provided the tapes to the accused probably in exchange for money - The Crown sought nine month concurrent sentences - The trial judge imposed nine month consecutive sentences, finding that concurrent sentences were inappropriate for different victims and separate transactions over one year apart - The Alberta Court of Appeal substituted concurrent nine month sentences - Although the accused came into possession of the two child pornography videos at separate times, the two charges both alleged possession on the same date (Sept. 5, 2008) - It was an error to find the two offences occurred over one year apart - Normally, the Crown would lay one charge of possession, arguing that more images warranted a higher sentence - In fact, the Crown had unsuccessfully sought to collapse the two counts into one - The accused was charged with possession of both videos on one fixed day - His possession was a single transaction - The court stated that "while separate charges were laid, all of his 'possession' was closely related, and the sentences should have been based on them being very closely related transactions. The Crown's submission for concurrent sentences was reasonable, and should have been accepted." - See paragraphs 22 to 31.

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children (incl. child pornography) - [See Criminal Law - Topic 5874 ].

Criminal Law - Topic 5849.7

Sentencing - Considerations on imposing sentence - Representations of counsel - The accused was convicted of two counts of possession of child pornography (two separate videos of two separate victims taken one year apart) - The Crown sought concurrent sentences of nine months' imprisonment - As the accused sought lesser sentences, this was not a joint sentencing recommendation - The trial judge agreed with the length of the sentences, but found them to be separate transactions requiring consecutive sentences - Accordingly, the judge exceeded the maximum total sentence requested by the Crown - The Alberta Court of Appeal stated that "while there is no legal requirement that the sentencing judge stay within that range, or adopt the recommended structure of the sentences, it is of concern when that is not done. ... The case law recognizes the importance of a trial judge giving fair warning to counsel when he or she proposes to sentence outside the recommended range ... This is a component of a wider principle that the parties are entitled to reasonable notice if the judge proposes to decide the case in a way not advocated by either party. ... Nevertheless, the sentencing judge has an obligation to impose a fit sentence, and neither exceeding the recommended range, nor failing to give counsel notice of intention to exceed the range, is, without more, reviewable error. If the sentence imposed is not demonstrably unfit having regard to the principles of sentencing in the Criminal Code, appellate interference is not warranted. Failing to seek the input of counsel may, however, make it more likely that the trial judge may overlook or overemphasize the relevant factors, rely on an irrelevant factor, impose a sentence based on an error in principle, or commit some other reviewable error." - See paragraphs 19 to 20.

Criminal Law - Topic 5874

Sentence - Manufacture, distribution or possession of obscene matter (incl. child pornography) - The accused was convicted of two counts of possession of child pornography, engaging in voyeurism, and copying voyeuristic materials - The accused, a youth worker/counsellor, allowed young people to use his spare bedroom for consensual sex - In separate instances one year apart, 15 and 16 year old girls had consensual sex with their boyfriends knowing that their activity was being recorded with a video camera - In both instances, the girls expected their activities to remain private (legal private use materials) - The boyfriends provided the tapes to the accused probably in exchange for money - Respecting the voyeurism counts, an 18 year old girl had consensual sex with a friend without knowing that the accused and her friend were surreptitiously videotaping the activity - The accused made copies and paid the friend $200 - The accused was a facilitator or, at its worst, a predator - The Crown sought a 15-18 month total sentence, premised on the child pornography sentences being concurrent - The trial judge sentenced the accused to a total sentence of 27 months' imprisonment, being nine months' imprisonment for each possession of child pornography (consecutive) and nine months' imprisonment for each voyeurism count (concurrent to each other, but consecutive to the child pornography sentences) - Denunciation and deterrence were paramount in child pornography offences - Different considerations applied where the illegal possession of private use materials (legal if kept private) was involved rather than materials that were illegal from the outset - The accused was not a passive recipient of the recordings; he was actively involved in the unauthorized intrusions into the girls' private sexuality - The accused did not testify - No pre-sentence report was prepared - There was no evidence of remorse, acceptance of responsibility or treatment or therapy - Mitigating factors included the lack of a criminal record and that possession was for the accused's personal use (no evidence of any intention to distribute them) - The Alberta Court of Appeal allowed the accused's sentence appeal to the limited extent of making the possession of child pornography sentences concurrent rather than consecutive, reducing the total sentence to 18 months' imprisonment - The court also imposed two years' probation with conditions.

Criminal Law - Topic 5924.2

Sentence - Voyeurism - [See Criminal Law - Topic 5874 ].

Cases Noticed:

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 16].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 16].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 16].

R. v. Wharry (W.E.) (2008), 437 A.R. 148; 433 W.A.C. 148; 94 Alta. L.R.(4th) 293; 2008 ABCA 293, refd to. [para. 17].

R. v. S.G.T., [2010] 1 S.C.R. 688; 402 N.R. 24; 350 Sask.R. 14; 487 W.A.C. 14; 2010 SCC 20, refd to. [para. 19].

R. v. Hood (S.V.) (2011), 505 A.R. 243; 522 W.A.C. 243; 2011 ABCA 169, refd to. [para. 20].

R. v. Abel (M.D.) (2011), 510 A.R. 136; 527 W.A.C. 136; 2011 NWTCA 4, refd to. [para. 20].

R. v. Beal (W.A.M.) (2011), 502 A.R. 177; 517 W.A.C. 177; 44 Alta. L.R.(5th) 306; 2011 ABCA 35, refd to. [para. 20].

R. v. Al-Fartossy (S.) (2007), 425 A.R. 336; 418 W.A.C. 336; 83 Alta. L.R.(4th) 214; 2007 ABCA 427, refd to. [para. 20].

Murphy v. Wyatt, [2011] E.W.C.A. Civ. 408; [2011] 1 W.L.R. 2129, refd to. [para. 20].

Labatt Brewing Co. et al. v. NHL Enterprises Canada, L.P. et al. (2011), 282 O.A.C. 151; 106 O.R.(3d) 677; 2011 ONCA 511, refd to. [para. 20].

Lawrence's Will Trusts, Re, [1972] Ch. 418, refd to. [para. 20].

R. v. Gauthier (J.S.) (2008), 425 A.R. 267; 418 W.A.C. 267; 2008 ABCA 39, refd to. [para. 28].

R. v. Peterson (R.W.) (2006), 402 A.R. 372; 2006 ABPC 177, refd to. [para. 28].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 33].

R. v. Johnson (I.S.) (2009), 457 A.R. 103; 457 W.A.C. 103; 2009 ABCA 74, refd to. [para. 33].

R. v. B.C.M. (2008), 259 B.C.A.C. 222; 436 W.A.C. 222; 238 C.C.C.(3d) 174; 2008 BCCA 365, refd to. [para. 34].

R. v. W.E. (2010), 293 Nfld. & P.E.I.R. 52; 906 A.P.R. 52; 251 C.C.C.(3d) 213; 2010 NLCA 4, refd to. [para. 34].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361, refd to. [para. 41].

R. v. Davis (G.N.), [1999] 3 S.C.R. 759; 248 N.R. 44; 182 Nfld. & P.E.I.R. 78; 554 A.P.R. 78, refd to. [para. 42].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 42].

R. v. Stirling (B.J.), [2008] 1 S.C.R. 272; 371 N.R. 384; 251 B.C.A.C. 62; 420 W.A.C. 62; 2008 SCC 10, refd to. [para. 42].

R. v. G.W.C. (2000), 277 A.R. 20; 242 W.A.C. 20; 2000 ABCA 333, refd to. [para. 51].

R. v. Tkachuk (E.A.) (2001), 293 A.R. 171; 257 W.A.C. 171; 2001 ABCA 243, refd to. [para. 51].

R. v. Cooper, [1978] 1 S.C.R. 860; 14 N.R. 181, refd to. [para. 51].

R. v. Ross (J.A.), [2005] A.R. Uned. 129; 2005 ABCA 231, refd to. [para. 53].

R. v. Booh (I.) (2003), 170 Man.R.(2d) 249; 285 W.A.C. 249; 2003 MBCA 16, refd to. [para. 54].

R. v. Koenders (A.D.) (2007), 244 B.C.A.C. 271; 403 W.A.C. 271; 2007 BCCA 378, refd to. [para. 54].

R. v. Barton (C.) (2002), 165 O.A.C. 294 (C.A.), refd to. [para. 54].

R. v. B.S.M. (2011), 502 A.R. 253; 517 W.A.C. 253; 2011 ABCA 105, refd to. [para. 59].

R. v. Innerebner (T.L.) (2010), 496 A.R. 196; 2011 ABQB 188, refd to. [para. 60].

R. v. Oldham (1975), 11 N.S.R.(2d) 312; 5 A.P.R. 312 (C.A.), refd to. [para. 61].

R. v. Jacks (1986), 50 Sask.R. 150 (C.A.), refd to. [para. 61].

R. v. White, 27 C.R.N.S. 66, refd to. [para. 61].

R. v. Chisolm, [1965] 2 O.R. 612 (C.A.), refd to. [para. 61].

R. v. Gummer (1983), 1 O.A.C. 141; 38 C.R.(3d) 46 (C.A.), refd to. [para. 61].

R. v. Fait (1982), 37 A.R. 273 (C.A.), refd to. [para. 63].

R. v. Erwin (B.R.) (2002), 317 A.R. 379; 284 W.A.C. 379; 2002 ABCA 210, refd to. [para. 63].

R. v. Gallant (A.S.) (2004), 220 N.S.R.(2d) 318; 694 A.P.R. 318; 2004 NSCA 7, refd to. [para. 77].

R. v. Draper (T.G.) (2010), 251 Man.R.(2d) 267; 478 W.A.C. 267; 2010 MBCA 35, refd to. [para. 77].

R. v. Adams (P.F.) (2010), 291 N.S.R.(2d) 206; 922 A.P.R. 206; 2010 NSCA 42, refd to. [para. 77].

R. v. Smith (1980), 40 N.S.R.(2d) 272; 73 A.P.R. 272 (C.A.), refd to. [para. 77].

Counsel:

J.C. Robb, Q.C., for the respondent;

A.M. Konye, for the appellant.

This appeal was heard on November 15, 2011, at Edmonton, Alberta, before Berger, Paperney and Slatter, JJ.A., of the Alberta Court of Appeal.

On January 12, 2012, the judgment of the Court was delivered and the following opinions were filed:

Slatter, J.A. (Berger, J.A., concurring) - see paragraphs 1 to 43

Paperny, J.A., dissenting - see paragraphs 44 to 85.