R. v. T.L.B.,

• Judge: Belzil,Fraser,Read
• Neutral Citation: 2007 ABCA 61
• Court: Court of Appeal (Alberta)
• Date: 24 January 2007
• Citation: 2007 ABCA 61,(2007), 409 A.R. 40 (CA),409 AR 40,70 Alta LR (4th) 1,218 CCC (3d) 11,[2007] CarswellAlta 194,[2007] AJ No 169 (QL),409 A.R. 40,[2007] A.J. No 169 (QL),(2007), 409 AR 40 (CA)

R. v. T.L.B. (2007), 409 A.R. 40 (CA);

      402 W.A.C. 40

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. FE.120

Her Majesty the Queen (appellant) v. T.L.B. (respondent)

(0603-0213-A; 2007 ABCA 61)

Indexed As: R. v. T.L.B.

Alberta Court of Appeal

Fraser, C.J.A., Belzil and Read, JJ.(ad hoc)

January 24, 2007.

Summary:

The accused pled guilty to transmitting and distributing child pornography and to sexual interference committed against her six year old son.

The Alberta Court of Queen's Bench, in a decision reported at 403 A.R. 293, imposed a conditional sentence of two years less one day followed by three years of probation. The Crown appealed from the sentence and from the court's decision declining to impose a firearms prohibition order.

The Alberta Court of Appeal allowed the appeal and substituted a sentence of 18 months' imprisonment. The time already served under the conditional sentence would be set off against the sentence of imprisonment. The court also imposed a weapons prohibition order.

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 5833

Sentencing - Considerations on imposing sentence - Deterrence - The accused pled guilty to transmitting and distributing child pornography and to sexual interference committed against her six year old son - The accused had cerebral palsy and was wheelchair bound - The offences were initiated under the direction of a man (T.) who she met on the internet and who had sent her images of child pornography - On one occasion, the accused placed her son's penis in her mouth - She also sent T. pictures of her son, naked and touching himself sexually - The accused eventually disclosed what she did - Approximately 80 pornographic images of children were retrieved from her computer - No prior record - The sentencing judge imposed a conditional sentence of two years less one day and three years of probation - The Alberta Court of Appeal substituted a sentence of 18 months' imprisonment (against which time served under the conditional sentence would be set off) - The sentencing judge failed to give due weight to the primary sentencing considerations that applied in cases of child sexual abuse, namely deterrence and denunciation - The sentencing judge also erred in treating the absence of sexual gratification and commercial gain by the accused as mitigating factors and in relying on the accused's disabilities as a reason not to impose an otherwise fit custodial sentence - Arrangements could be made within an institutional setting to accommodate the accused's special needs.

Criminal Law - Topic 5848.3

Sentencing - Considerations on imposing sentence - Medical - [See Criminal Law - Topic 5833 ].

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See Criminal Law - Topic 5833 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children (incl. child pornography) - [See Criminal Law - Topic 5833 ].

Criminal Law - Topic 5849.3

Sentencing - Considerations on imposing sentence - Adequacy of penal institutions - [See Criminal Law - Topic 5833 ].

Criminal Law - Topic 5874

Sentence - Manufacture, distribution or possession of obscene matter (incl. child pornography) - [See Criminal Law - Topic 5833 ].

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - [See Criminal Law - Topic 5833 ].

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; 105 C.C.C.(3d) 327, refd to. [para. 13].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321; 114 C.C.C.(3d) 436, refd to. [para. 13].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 13].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; 102 C.C.C.(3d) 193, refd to. [para. 13].

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. 20].

R. v. W.B.S.; R. v. M.P. (1992), 127 A.R. 65; 20 W.A.C. 65; 73 C.C.C.(3d) 530 (C.A.), refd to. [para. 21].

R. v. D.C. (1997), 200 A.R. 204; 146 W.A.C. 204 (C.A.), refd to. [para. 21].

R. v. Pretty (H.F.) (1998), 216 A.R. 25; 175 W.A.C. 25 (C.A.), refd to. [para. 21].

R. v. Deck (B.S.) (2006), 384 A.R. 106; 367 W.A.C. 106; 2006 ABCA 92, refd to. [para. 21].

R. v. Hunt (W.E.) (2002), 303 A.R. 240; 273 W.A.C. 240; 166 C.C.C.(3d) 392; 2002 ABCA 155, refd to. [para. 26].

R. v. M.L.F. (2005), 376 A.R. 128; 360 W.A.C. 128; 2005 ABCA 423, refd to. [para. 26].

R. v. Shelton (C.J.G.) (2006), 391 A.R. 177; 377 W.A.C. 177; 209 C.C.C.(3d) 527; 2006 ABCA 190, refd to. [para. 26].

R. v. Hewlett (J.J.) (2002), 312 A.R. 165; 281 W.A.C. 165; 167 C.C.C.(3d) 425 (C.A.), refd to. [para. 26].

R. v. A.R. (1994), 92 Man.R.(2d) 183; 61 W.A.C. 183; 88 C.C.C.(3d) 184 (C.A.), refd to. [para. 34].

R. v. Nuttall (S.M.) (2001), 293 A.R. 364; 257 W.A.C. 364; 2001 ABCA 277, refd to. [para. 34].

Counsel:

S.D. Hughson, Q.C., for the appellant;

L.K. Stevens, Q.C., for the respondent;

L.L. Garcia (agent for L.K. Stevens, Q.C.), for the respondent.

This appeal was heard on January 23 and 24, 2007, before Fraser, C.J.A., Belzil and Read, JJ.(ad hoc), of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was delivered orally by Fraser, C.J.A., on January 24, 2007, and was filed on February 21, 2007.