In the Provincial Court of Alberta

Citation: R. v. Hammermeister, 2015 ABPC 228

Date: 20151201
Docket: 140155664P1
Registry: Edmonton
Between:
Her Majesty the Queen

- and -

Ryan Hammermeister

Restriction on Publication
Identification Ban See the Criminal Code, section 486.4. By Court Order,
information that may identify the complainant must not be published, broadcast, or
transmitted in any manner.
NOTE: This judgment is intended to comply with the restriction so that it may be
published.

Reasons for Judgment of the Honourable Judge L.K. Stevens

[1]

Ryan HAMMERMEISTER (the Offender) has plead guilty to three indictable offences:
Count 1: Between the 25th day of July, 2013, and the 27th day of July, 2013,
both dates inclusive, at or near Edmonton, Alberta, did, for a sexual purpose,
unlawfully touch, directly or indirectly, with a part of the body or with an object,
a part of the body of [A.C.], a person under the age of sixteen years, contrary to
Section 151 of the Criminal Code of Canada (hereafter referred to as sexual
interference);
Count 3: Between the 1st day of February, 2013, and the 31st day of December,
2013, both dates inclusive, at or near Edmonton, Alberta, did, by means of
telecommunication, communicate with a person who was, or who the Accused
believed was, under the age of 18 years, for the purpose of facilitating the
commission of an offence under subsection 153(1), Section 155, 163.1, 170 or
171 or subsection 212(1), (2), (2.1) or (4) with respect to that person, contrary to

-2Section 172.1(1)(A) of the Criminal Code of Canada (hereafter referred to as

internet luring to facilitate the creation of child pornography);
Count 4: Between the 1st day of February, 2013, and the 31st day of December,
2013, both dates inclusive, at or near Edmonton, Alberta, did, by means of
telecommunication, communicate with a person who was, or who the Accused
believed was, under the age of 16 years, for the purpose of facilitating the
commission of an offence under Section 151 or 152, subsection 160(3) or 173(2)
or Section 271, 272, 273 or 280 with respect to that person, contrary to Section
172.1(1)(B) of the Criminal Code of Canada (hereafter referred to as internet
luring to facilitate sexual interference).
[2]
A two day sentencing hearing followed, in which the evidence of a developmental
psychologist and the complainants father was called. Voluminous materials and authorities
were filed, all of which I have reviewed. Not all will be referred to specifically in this judgment.
Issues
[3]
The central issue is the appropriate sentence for these offences and this Offender,
informed by the principles and prescriptions of the Criminal Code, which I need not reproduce,
and the jurisprudence. The secondary issue is whether the evidence leads to the conclusion that
the 3 year starting point for major sexual assaults should be extended to similar acts with
ostensibly consenting young people legally unable to consent due to their age.
Facts
[4]
An Agreed Statement of Facts was filed and made Exhibit S10 in these proceedings. A
copy of that Exhibit is attached to these Reasons.
[5]
To summarize, the Offender met the female complainant through a program run by the
Army Cadets. At the time, the complainant was a 13 year old cadet. Mr. Hammermeister was
28 years old, married with two children. He was a volunteer with the program, having
previously served with the Canadian Armed Forces. Although he was not in a direct position of
power over the complainant nor directly involved with cadet training, he was a volunteer with
service experience and previous rank and would have been so perceived and respected within the
cadet program.
[6]
For many months in 2013, the Offender communicated personally with the complainant
over various text messaging programs. Printed copies of samples of those electronic
communications were entered before me as Exhibits S2, S3 and S4. Many were sexually explicit
and degrading, and demonstrated repeated and increasing pressure for her to engage in various
sexual acts with him. They also included requests that she send him pictures of her naked
breasts. She ultimately complied by sending him two such images, images which constitute
child pornography. He sent her an image of his erect penis. Other messages told the
complainant that the Offender had previously had sex with other cadets.
[7]
The complainant lived with her father during this period, and was routinely home alone
after school for a couple of hours while her father was at work. This was known to the Offender
and he pressed her to let him come to her home to have sex while her father was absent. On one

-3occasion the complainant agreed, and Mr. Hammermeister went to her home and they had sexual
intercourse.
[8]
The Offender did not have actual knowledge of the complainants age. It is admitted
before me that he thought she was about 16. Mr. Hammermeister acknowledges that he did not
take reasonable steps to ascertain her age.
[9]
The communications were discovered by the complainants father who contacted the
police. The Offender confessed to these events to police following his arrest.
[10] The young complainant believed that she was in a romantic relationship with Mr.
Hammermeister. She did not appear or testify before me. She did file a Victim Impact
Statement which includes the following statements:
By this event happening to me I just tend to hide myself, I also have a very hard time
with opening up to people I notice that I have a very hard time trusting men in authority.
Its harder for me to open up to anyone witch leads op to anger and Hate toward people.
[sic]
I feel like I cant talk to anyone it takes me more time then it should, I keep my emotions,
and my feelings to my self. Witch why I tend to get angery alot of times. [sic]
[11] I note the evident immaturity and lack of sophistication in this childs poignant attempt to
describe the effect of these offences upon her, a level of maturity which was consistent with that
displayed in her electronic communications with the Offender. That she is a child in every sense,
and not a young adult, is obvious.
Positions of the Parties
[12] The Crown seeks a global sentence of four years for these offences, along with ancillary
orders. Defence counsel seeks two to two and a half years imprisonment. Both counsel filed
many authorities.
Expert Evidence
[13] The Crown called expert evidence in a sentencing hearing in this case and has asked me
to rely upon it to find that the starting point of three years for a major sexual assault upon an
adult victim as per R. v. Sandercock, 1985 ABCA 218 and R. v. Arcand, 2010 ABCA 363,
should also apply to sexual offences of this nature. The Crown argues that the risk of serious
harm to child complainants who purport to engage willingly in the sexual acts is equally grave.
Further, the Crown filed significant materials to establish the legislative intent and basis for
raising the age of consent from fourteen to sixteen in 2008.
[14] The reasoning for doing so flows largely from the decision of the Alberta Court of
Appeal in R. v. Bjornson, 2012 ABCA 230 in which the Crown made a similar argument to the
one made here. That case concerned an appeal from a sentence of six months imprisonment and
probation imposed upon a twenty-two year old male who engaged in a sexual relationship with
an ostensibly consenting fifteen year old complainant, an age at which she could not consent
after the 2008 amendment. At paragraph 8 in Bjornson, the appellate court set out thirteen

-4concerns with the lack of record before the Court, including a lack of evidence regarding the
legislative record, Parliaments intent, and as to whether harm should be presumed.
[15] In this case, Dr. Michael Boyes (Dr. Boyes) was qualified as an expert witness in
human psychology and human development generally, and more specifically, in the risks and
consequences for adolescents who are persuaded to become sexually involved with older adults.
Dr. Boyes curriculum vitae and evidence demonstrated extensive expertise as a developmental
psychologist and a paper written by him reviewing the research and conclusions in this area was
entered as Exhibit S8. Also filed were a large number of studies and research papers Dr. Boyes
had reviewed and relied upon in arriving at his conclusions.
[16] From the evidence of Dr. Boyes, the research in developmental psychology consistently
establishes that the frontal lobes of the human brain, which control higher decision making, as
well as the midbrain areas, which control emotional regulation and reward management, are the
last to develop fully. Supportive of the legislative change raising the age of sexual consent with
older adults to 16, these areas are not fully developed until at least the oldest adolescent years of
17 to 20, and often not until a few years older. Physical sexual maturity, which may be reached
between the ages of 11 and 16, does not equate with brain maturity. The latter is consistently not
achieved until at least 3 to 5 years later.
[17] Adolescence is associated with risk-taking, sexual curiosity and a growing desire for
independent and intimate relationships. Dr. Boyes evidence was that the developmental
research from several disciplines, psychological, medical and sociological, demonstrates clearly
that middle adolescents are not equipped to deal with sexuality and its complex issues on an
equal footing with adults who have achieved cognitive brain maturity. This inherent inequality
is strongly correlated to negative consequences for adolescents who become sexually involved
with adults. The negative outcomes for those adolescents include a statistically significant
increase in psychological and social adjustment issues, higher rates of substance abuse,
impairment of school performance or the ending of attendance, and increased early and high risk
sexual activity. This is not simply because of their shorter life experience, but because the young
adolescents brains are not fully developed cognitively. In other words, adolescents are very
vulnerable to adult exploitation because their essential higher brain development lags behind
their physical ability and maturity.
[18] The result is that children below the ages of 14 or 16 are not equipped to give informed
consent to sexual activity with someone who is either 2 years older or 5 years older depending on
their age. The research and opinion evidence in the case before me therefore supports the
legislative change which raised the age of consent to reflect human psychological development.
It is science based, and not simply the imposition of a particular moral code.
[19] The other reality which must be considered with this evidence in mind is the conundrum
created if proof of actual harm must be offered rather than presumed when considering sentence
in the cases of willing adolescents who are preyed upon by older adults. It is difficult to imagine
an adult who is the victim of a major sexual assault not suffering serious emotional harm, or one
who would not perceive that harm immediately. The virtually universal experience in the
criminal justice system drives home that the opposite is true, and that the traumatic harmful
effect of a major sexual assault on an adult is often felt for the rest of their lives.

-5[20] The teenager who trusts, is attracted to, and finds the intimate interest of an adult
flattering and captivating may not perceive harm from sexual activity with that adult, at least not
for some time. The psychological and sociological evidence, which was not countered by
contrary evidence or opinion in this case, is that the negative effects on their psychological and
social well-being are often profound and long term. To require proof of that harm in the short
term may incorrectly lead to minimization of the assessment of actual harm in such cases.
[21]
Under cross-examination, Dr. Boyes agreed that the scientific research cannot point to a
direct causal relationship between sexual activity with older adults and the harms with which the
research has found strong correlation. It is impossible for the science to do so, nor to say that
serious harmful consequences will occur in every individual case. But the vast majority of the
research studies done show a significant statistical increase in damaging behaviours, life choices
and psychological development in adolescents who engage in sexual activity with older
offenders in a relationship which is inherently power imbalanced.
[22] The Crown also called viva voce evidence from the complainants father. The
complainant has been his foster daughter since she was just under 4 years old. The fathers
evidence described his own observations of negative changes in his daughters life and
behaviours since 2013, which included a great deal of trouble and truancy from school,
associating with inappropriately older peers, attraction to males from 18 to 35, and a disturbing
willingness to go off for periods of time with older adult males who were virtual strangers to her.
[23] It must be noted that the father sat through the evidence of Dr. Boyes, and that he
acknowledged that many of the observations he described mirrored those described by Dr.
Boyes. The father testified that he only made the connections to his daughters subsequent
behaviour, which he clearly found very troubling, after having heard the testimony of Dr. Boyes.
I found the fathers evidence sincere, but I cannot give it the same weight as if it had been given
independently and without having heard the opinion evidence first. The father also gave
evidence that the complainant has some special needs and may be developmentally challenged,
but this was vaguely described or even understood and not proven by any expert evidence or
diagnosis.
Circumstances of the Offender
[24] With respect to the Offender, both a Pre-Sentence Report (PSR) and a Forensic
Assessment and Community Assessment (FACS) were filed. He is 30 years old and has no
criminal record. He has expressed remorse and self-disgust over the commission of these
offences. He was on release on the typical conditions imposed in these offences since his arrest,
including reporting, no internet access, and not to be in the presence of anyone under 18 except
in the immediate presence of the childs guardian (other than his own children). His response to
supervision and compliance with conditions was described by the PSR writer as both positive
and pro-active.
[25] He is married, and his wife remains with him. He has two children, born in 2004 and
2013. The older child is born of an earlier relationship that dissolved after the Offenders
deployment overseas. The Offenders conduct has caused considerable stress, friction and pain
within his immediate family and extended family, but his wife and mother were present in court
to show their continued support.

-6[26] The Offenders childhood was not without some sadness and loss, but is relatively
unremarkable. He became a father in his late teens and thereafter dropped out of high school.
He entered the Canadian Armed Forces in 2006, and served in various deployments within
Canada until being sent to Afghanistan in 2008 and 2009. He returned to Canada as a Corporal,
but resigned from the Forces in 2012 due to frustration at lack of advancement.
[27] After leaving the military, he entered a plumbing apprenticeship but lost that employment
in 2014 when these charges became known to his employer. He worked in a number of short
term jobs thereafter until obtaining his current employment as a first year plumbing associate in
June of 2014. His current employer is aware of these charges, and described
Mr. Hammermeister as a good employee with a high work ethic. Whether he can return to that
employment after serving his sentence is unknown.
[28] While in Afghanistan, the Offender was exposed to life threatening events, and a close
friend was killed by a roadside bomb in circumstances for which the Offender unreasonably
blamed himself. In 2014 he was diagnosed with Post-Traumatic Stress Disorder, suffering from
personality changes, flashbacks, sleep disorder, and alcohol abuse. He has been receiving
counselling since, has curbed his alcohol consumption and has been working on his
relationships. No connection between these offences and the PTS disorder was shown or
claimed.
[29] The FACS Assessment contains some inconsistent and contested statements. Crown
counsel fairly conceded that the benefit of the doubt on these points must be given to the
Offender and I have done so. The themes of showing remorse for the damage he has caused to
himself and his family were repeated in this assessment, as well as his expression of a strong
desire not to repeat such conduct. Also repeated was a finding that he lacks an understanding of
the predatory and exploitive nature of his behaviour, or any insight as to how to ensure that it
would not be repeated. Ongoing problems with anxiety, communication and insight were noted,
particularly in relationships with age appropriate females. Overall, the FACS assessment
contained both positive and negative indicators for the Offenders treatment and rehabilitation,
and his risk of reoffending was found to be low to moderate. The recommendations made by the
forensic psychologist to help ensure that the Offender does not reoffend lead me to the
conclusion that the risk is closer to moderate than low absent appropriate intervention and a
significant gain in insight by him.
Analysis
[30] I will deal with the secondary issue first, whether the 3 year starting point should be
extended to apply here. I decline to do so.
[31] My first reason is that I am a provincial court judge, and as such I do not create or extend
starting point sentencing precedents. I understand that this argument is before the Alberta Court
of Appeal currently, where such arguments are properly made.
[32] My second is based upon my understanding of the starting point jurisprudence itself,
which requires the statement of typical categories of offences with precision for the purposes of
setting starting points: Sandercock (at paras. 6 to 7). Respectfully, the offence of engaging in
ostensibly consensual sexual acts with an underage adolescent incapable of consent at law is a

-7different category of offence than the commission of the same sexual act on an adult without his
or her factual consent.
[33] This does not lead to the conclusion that either the moral blameworthiness of the offender
or the harm done to the adolescent victim in such cases is necessarily less. The moral
blameworthiness of this Offender is very high, and there is evidence of real harm done to this
vulnerable victim in this case.
[34] Therefore, without application of the starting point set in Sandercock and amplified by
Arcand, I look to the jurisprudence for the sentences imposed in similar cases, consider the
aggravating and mitigating factors in this case, and then with reference to his personal
circumstances impose a sentence in accordance with proportionality.
[35] Many authorities were put before me, all of which I have reviewed. I will refer
specifically only to those which I found most applicable. Those do not include the Alberta
Court of Appeal decisions in R. v. Pritchard, 2005 ABCA 240, R. v. Feng, 2011 ABCA 172, or
R. v. Pudwell, 2013 ABCA 88, three cases which may first appear to be similar but a full
understanding of the underlying facts in each of them leads me to the conclusion that all three
should be restricted to their specific and unusual facts.
[36] In Bjornson, the offender was 22 years old and the complainant a 15 year old friend of
the offenders niece. After a casual meeting, electronic communications occurred. This led to
several incidents of sexual intercourse and other sexual activity. The original sentence of 6
months imprisonment and probation was increased to 17 months imprisonment and probation by
the Court of Appeal. The offender had pled guilty to the s. 151 offence.
[37] In R. v. King, 2013 ABCA 3, the 43 year old offender met the 15 year old complainant
and convinced her and her mother that he was a youth pastor, although he was not. Using this
ploy and the opportunity it offered, many acts of intercourse occurred over several months. He
was convicted of offences under ss. 271, 151, and 152 after trial. The Court of Appeal upheld
the 3 years imprisonment imposed.
[38] In R. v. Hajar, 2014 ABCA 341, the 20 year old offender met the 14 year old
complainant on line and engaged in on-line communications thereafter. He convinced her to
send him an image of her naked chest and discussed sexual acts with her. After several meetings
in which kissing occurred, the offender had the complainant perform fellatio upon him in his
parked car. The offender pled guilty and was sentenced to 15 months imprisonment for the
count under s. 151, and 3 months consecutive for the 172.1 offence. There was no minimum at
the time for the latter offence. Cross appeals from this sentence are currently before the Court of
Appeal.
[39] In R. v. Bamish, 2013 ABPC 302, the adult offender had on-line communications with a
13 year old boy. The complainant had initiated the contact seeking a gay sexual experience.
Three meetings resulted in which mutual acts of fellatio occurred. Convictions were entered
after trial under ss. 172.1, 151, 152, and 271. The sentencing judge found that the three year
starting point applied, and imposed 3 years concurrent for each of the sexual offences, one year
consecutive for the internet luring.

-8[40] In R. v. S.R.T., 2014 ABPC 266, the offender pled guilty to an offence under s. 271
arising from a 2 year sexual relationship which began when he was 20 years old and the
complainant was 14. Hundreds of sexual acts occurred and it culminated in the complainant
becoming pregnant and giving birth to a child. Thirty months of imprisonment were imposed.
In addition to the guilty plea, the offenders acceptance of financial responsibility for the child
and his pursuit of supervised access to the child were found to demonstrate acceptance of
responsibility.
[41] In R. v. Revet, 2010 SKCA 71, the majority of the Saskatchewan Court of Appeal upheld
a three year sentence imposed for an offence under s. 271 arising from a relationship with two
acts of sexual intercourse between the 39 year old offender and a 14 year old girl with a learning
disability. The majority also found that the three year starting point applied to offences of this
nature.
[42] In R. v. Mahoney, 2010 ABCA 340, the Alberta Court of Appeal upheld a sentence of 3
years imprisonment imposed upon an offender who had had several acts of intercourse and
fellatio with a 13 year old girl. A guilty plea was noted, but very few other facts are provided in
the Courts memorandum, the Court finding that the appellant had not met the appellate burden
to show that the sentence was demonstrably unreasonable.
[43] In R. v. Ambrus, 2014 ABPC 173, the 27 year old offender was convicted after trial on
one count under s. 151 with respect to a 15 year old complainant who did not have to testify in
the trial due to admissions by the offender. The offender initiated contact with her on-line, there
were numerous communications which led to numerous acts of sexual intercourse and other
sexual acts occurring over several months. The offender provided her with alcohol on two
occasions, and threatened to expose her by way of a video he falsely claimed to have made of
them having sex. He was sentenced to 42 months imprisonment.
[44] From this review, I conclude that the typical range of sentence imposed upon mature
offenders, not in a position of trust and with no prior record, who engage in sexual intercourse or
similar sexual activity with ostensibly willing adolescents below the age of consent is between
18 months and 3 years imprisonment.
[45] In these authorities, mitigating and aggravating factors were identified. Aggravating
factors included:

The greater the breadth in the age gap, the more aggravating the effect;

The degree of exploitation and pressure exerted by the adult;

The number of incidents;

The use of alcohol or other intoxicants;

Any particular vulnerability of the complainant known to the offender;

Willingness to risk pregnancy or sexually transmitted disease;

The use of the internet and the invasion into the childs home and private
communications to aid in the commission of the offence;

-9-

[46]

[47]

[48]

The facilitation of the creation of child pornography; and

Any threats used, including those to expose or humiliate the child.

Mitigating factors included:

A guilty plea and acceptance of responsibility;

Efforts made toward rehabilitation; and

Unique factors arising from the offenders personal circumstances.

In the present case I find the following aggravating factors to exist:

The age difference between Mr. Hammermeister and the complainant was great. At
28, he was more than double her age of 13;

His electronic communications were manipulative, pressuring and included

degradation of the complainant;

The complainant was pressured to provide pornographic images of herself to the

Offender;

The act of intercourse occurred in her own home, at a time when he took care to know
she was vulnerable and alone, and showed planning;

Although not in a position of trust or authority over her, Mr. Hammermeister was in a
volunteer position in which his military experience would result in an enhanced
position of respect in the eyes of a young cadet, a fact which he would have known as
a military man and former cadet. This increased her vulnerability to his exploitation;
and,

The complainant has suffered emotional harm, the consequences of which for her life
and development remain unknown, but that risk must have been known to a person of
his age and life experience and of which he was in reckless disregard for his own
gratification.

I find the following mitigating factors to be present:

The timely guilty pleas offered by the Offender, sparing the need for the complainant
ever to have to testify;

His early confession and remorse; and

His potential for rehabilitation is real with the right interventions.

[49] I do not find that the Crown has proven that the complainant has any particular
developmental disability. I also find that the Offenders lack of insight into the serious nature of
his conduct and tendency toward minimization lead to a guarded assessment of his potential
rehabilitation despite his continued family support.

- 10 [50] On balance, the aggravating factors outweigh the mitigating factors although I find the
timely guilty pleas and early confession to be significantly mitigating. One also has to be
mindful that some of the conduct which aggravates the s. 151 offence, namely the internet luring
and the facilitation of the creation of child pornography is caught separately in the other two
counts, which carry minimum sentences of 1 year imprisonment in themselves. It is important
that this conduct not be double counted in the sentences I imposed.
[51] Upon review of the jurisprudence and considering the mitigating and aggravating factors
present, I find that the range of global sentence appropriate in this case to be between 2 and 2
years. Although the aggravating factors might otherwise lead me to the top of that range, I find
that the primary purpose of sentencing, protection of the public, would be better served by a
sentence of 2 years imprisonment followed by a 3 year probation order. Denunciation and
deterrence are clearly the most important principles of sentence here, but rehabilitation remains
an important goal. The latter will ensure that supervision, counselling and community protection
provisions are in place for the longer term.
[52] With respect to the offence under s. 151, the sentence will be 1 year imprisonment. One
year consecutive is imposed for the offence under s. 172.1(1)(a). Finally, there will be a
sentence of 1 year concurrent for the s. 172.1(1)(b) offence. Three years probation will follow.
[53] Pursuant to s. 490.013(2.1) of the Criminal Code, there will be an Order under the Sex
Offenders Registry Act for life. There will also be a DNA Order made with respect to all three
offences.
[54] There will also be an Order made under s. 161 of the Criminal Code for five years
following his imprisonment. I wish to hear further from counsel as to its terms as well as to the
terms of the Probation Order so those matters will be dealt with orally.
[55]

I will also hear further from counsel with respect to the Victim Fine Surcharges.

Heard on the 20th day of July, 2015.

Dated at the City of Edmonton, Alberta this 1st day of December, 2015.

L.K. Stevens
A Judge of the Provincial Court of Alberta
Appearances:
C. Krieger
for the Crown
M. Sparks
for the Accused