R. v. McPhee
2020 ABPC 106
In the Provincial Court of Alberta
Docket 181146077P1
Before Judge A.A. Fradsham
Decided on June 11, 2020

Relevancy of the Case: Cognitive difficulties as a mitigating factor in the sentencing of a case involving blackmailing and sextortion of a minor girl

Statutes and Provisions Involved

• The Criminal Code, 1985 (Section 161(1), 163.1, 172.1, 487.04(a), 490.013, 490.1(1), 718.01, 718.2, 743.21(1))

Relevant Facts of the Case

• The defendant, McPhee, aged 18, befriended the 16-year-old victim across various social media, such as Facebook, Instagram and Snapchat. After a certain point, he steered the conversation towards sexual topics by requesting intimate pictures from her.
• The victim shared her intimate pictures with McPhee. After that, he sent his naked pictures.
• The defendant threatened the victim, stating that if she did not engage in sexual activity with him, he would share her intimate pictures with others, despite the victim’s explicit statement of disinterest.
• McPhee employed false identities on Instagram, Facebook, and Snapchat to coerce the victim into meeting and engaging in sexual activities with him. He threatened to leak her intimate pictures and even went as far as threatening to kill her family members.
• The victim confronted him, and he pretended that it wasn’t him, stating that someone had stolen his user accounts.
• McPhee used the names [CS] and [CK] to communicate with the victim because he desired more nude images. He admitted to attempting to conceal his actions by assuming the personas of either [CK] or [CS]. McPhee’s selfishness motivated his behaviour.
• The main concern is determining the proper sentence for Mr McPhee’s inappropriate behaviour. The secondary concerns involve evaluating the impact of his personal circumstances on his level of responsibility or the suitability of serving a sentence in a confinement facility or both.

Prominent Arguments by the Counsels

• The prosecution’s counsel submitted that the defendant’s offences of extortion, child luring, and accessing child pornography warrant a sentence of 18 months to 2 years imprisonment, followed by 2 years of probation, as well as additional ancillary orders.
• The defendant’s counsel submitted that the court should consider his cognitive difficulties, resulting in reduced moral culpability and a decreased need for deterrence and denunciation. The counsel proposed that a conditional sentence order served within the community would suit him, considering his circumstances and his potential vulnerability in a custodial facility.

Opinion of the Bench

• Due to his cognitive limitations, the offender cannot escape moral responsibility. He knew his actions and intentions and deliberately manipulated and deceived the victim. His cognitive challenges did not contribute to his criminal behaviour, and any correctional facility could accommodate his needs.
• The defendant’s actions involved serious offences, specifically the exploitation of a minor under 18 years old through manipulation of their online relationship. These sexual acts committed against a child violated both statutory and common law principles, therefore warranting consecutive sentences for each count.
• The court applied the totality principle and reduced the custodial sentences for each count. Imposing the total of consecutive sentences would be unduly harsh and fail to achieve the sentencing objectives of deterrence and denunciation.

Final Decision

• The court sentenced the defendant to 24 months less 1 day incarceration, followed by 24 months of probation. The court also subjected him to various ancillary orders such as DNA, SOIRA, and prohibition.