PROVINCIAL COURT OF NOVA SCOTIA
Citation : R. v. MacNeil, 2023 NSPC 26
Date: 20230524
Docket: 8376573
Registry: Sydney
Between:
His Majesty the King
v.
Christian MacNeil
Restriction on Publication: s. 486.4
Judge: |
The Honourable Judge Shane Russell |
Heard: |
April 18, 2023, in Sydney, Nova Scotia |
Decision |
May 24, 2023 |
Charge: |
s. 271 Criminal Code, RSC 1970, c C-34 |
Counsel: |
Glenn Gouthro, for the Crown James Snow, for the Defence |
Order restricting publication — sexual offences
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
By the Court:
Introduction
[1] This is the sentencing of Christian Gerard MacNeil. The accused pled guilty to the following offence occurring between February 21, 2019, and May 25, 2019:
Did commit a sexual assault on A.B. contrary to Section 271 of the Criminal Code.
[2] Children are the very future of any healthy and productive society. They ought to be valued. Children are amongst the most vulnerable, most impressionable, and most susceptible. They ought to be protected. Sadly, adult sexual predators keenly recognize their vulnerability and prey upon it. As a result, children are often violated and exploited for selfish, vial, and abhorrent reasons.
[3] As a collective society there is an obligation to protect children from sexual predators. Judges share in this obligation. The Supreme Court of Canada specifically spoke to this in the landmark decision of R. v. Friesen, 2020 SCC 9 at paras. 45, 46, & 50:
[45] […] Nonetheless, the criminal law in general and sentencing law specifically are important mechanisms that Parliament has chosen to employ to protect children from sexual violence, to hold perpetrators accountable, and to communicate the wrongfulness of sexual violence against children. It is our duty to give Parliament's sentencing initiatives their full effect.
[46] Because protecting children is so important, we are very concerned by the prevalence of sexual violence against children. This "pervasive tragedy that has damaged the lives of tens of thousands of Canadian children and youths" continues to harm thousands more children and youth each year […].
[…]
[50] To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause. Getting the wrongfulness and harmfulness right is important […].
Circumstances of the Offence
[4] At the time of the abuse, the child victim was between the ages of 13 and 14. The accused was 22 and later turned 23. The accused had been associating with another 13-year-old child who in turn introduced him to the victim. At all times the accused knew the victim was just 13 years old.
[5] The predatory grooming behaviour began early. After meeting the victim, he took her for a drive. Soon after, he engaged in steady communication with her through social media. The victim, who eventually went to police, stated the accused “would help her through things in her life when she needed it”. He essentially held himself out as a source of support, a person this child could confide in. The victim soon began to “hang out” with the accused almost everyday. She advised police that she “developed feelings” for him and thought he felt the same way about her.
[6] The child described to the police that she felt she was in a “dating relationship” with the accused for a period of five months. Over the course of the first two months there was frequent hugging and kissing. Things escalated very quickly. The victim advised that the accused became “more pushy” about having sex. He told her he didn’t want to wait for her to turn 16. He wanted sex now.
[7] For the remaining 3 months the accused continued to see this child on a daily basis. She stated he wanted sex “everyday”. The abuse was frequent. He would take her to his bedroom where he would have both vaginal and anal intercourse with her.
[8] She described the nature of the sexual interactions as him being “dominate” and her being “submissive”. She described him as “the master” and she would “do what he said”. She told police, “he liked BTSM” referring to what is “BDSM”, which involves bondage, dominance, submission, and sadomasochism. She described the acts as “really rough” and if she didn’t do what he said, “there would be consequences”. In describing these consequences, she stated he would squeeze hard on her breasts, “tap” on her face, slap her, punch her, and leave physical marks on her body. He used his nails to leave marks on her body.
[9] The officer asked her to clarify what she meant by the sexual acts being rough. She stated, “I basically didn’t have a choice on the amount he did it, or how fast he did it, or where he did it, or what he did”. She was asked if the accused would say anything during these deviant acts and she stated she had to call him “daddy”.
[10] In addition to the frequent sexual abuse the accused would take nude photos of her. The relationship ended when the victim’s mother found out about her association with the accused.
History of the Proceedings
[11] The accused was arrested on August 26, 2019, and released by the Court on August 29, 2019. He was bound by a restrictive 10:00 p.m. to 7:00 a.m. curfew. This release order remained in effect without incident for approximately 3 years and 8 months.
[12] After a series of COVID related adjournments the accused entered a guilty plea on the scheduled preliminary hearing date. The accused did not appear for his scheduled sentencing date on April 12, 2023. He was quickly arrested and has been on remand awaiting sentencing since April 13, 2023.
Circumstances of the Offender
[13] Given that sentencing is an individualized process the qualities and circumstances of this accused are essential. The accused is 27 years old and has no prior record. He received an 18-month conditional discharge in 2015 for three offences: threats (s. 264), possessing a weapon (s. 88), and breach of an undertaking (s. 145). For the purposes of this sentencing the accused is being treated as a first-time offender.
[14] His parents separated when he was a toddler. He is currently unemployed and lives in the family home with his mother. He grew up in a loving home where his needs were always met. His homelife was free of all forms of violence and substance abuse. He has never abused alcohol or drugs.
[15] His mother described him as a “home body” without many friends. He spends most of his time with his “on again/off again” girlfriend of five years. He lives a fairly simple existence consisting mostly of playing video games and taking photographs.
[16] The accused’s father described him as a “down-to-earth person” who is helpful to others. He described his son as a shy person who could benefit from some structure in his life. He has never known the accused to be violent or quick-tempered. He noted the accused does not like to talk about the matter before the Court.
[17] In terms of health, the accused suffers from anxiety and depression. He has not received any formal diagnosis, nor has he sought out mental health services. He suffers from asthma, has back trouble, and needs fairly extensive dental surgery.
[18] The accused is currently unemployed and on income assistance. He has no volunteer involvement. He has had sporadic employment which included work at a local call center and as a delivery person for a local newspaper. In 2019 he was fired from his position at the call center.
[19] The accused has a limited education having only completed grade eleven. He described being bullied in junior high. He has a stated intention of upgrading his education but no defined plan.
[20] At the sentencing hearing the accused expressed remorse for the harm caused to the victim and her family. He stated that he is willing to “do anything” to mitigate that harm. He is trying to look forward.
[21] In terms of insight into his acts he stated, “I kind of knew it was wrong but didn’t at the same time in my head, and I don’t really understand why I did it”. He added, “I try to wrap my head around it, but I don’t really know, it was a mistake in my life that I can’t really take back and it has caused a lot of harm to others.”.
[22] The author of the pre-sentence report notes that a comprehensive sexual offender assessment is required to determine proper treatment interventions.
Impact on the Victim
[23] A.B. submitted a victim impact statement. The horrific protracted abuse continues to have a lasting impact on her mentally, emotionally, physically, and socially. She described herself as having been a “fun-loving” person close to family and friends. After the abuse she lost her sense of self. She now lives with the reality that she is unable to trust others.
[24] She lives with the shame and belief that others are talking about her. Despite having done nothing wrong she blames herself. She feels her parents can not trust her. In turn, her relationship with them has been strained. She struggles deeply with anxiety. Her anxiety is heighted when she interacts with others and attempts to form relationships.
[25] A.B. now battles with low self esteem and has lost weight. She has turned to alcohol and marijuana to “numb out the pain”. She uses these substances to mask the anxiety she now feels when around others.
[26] Despite her ongoing suffering she remains hopeful, “As of now I am going to make my life beautiful and full instead of dark and gloomy like it was”. However, the reality for her has been that her struggles continue to impact her life. She has not been to school for two years; she stays at home and avoids interacting with others. The dynamic between her and her mother remains a challenge.
Positions of the Parties
The Crown
[27] The Crown argues for a custodial sentence in the range of 7 to 8 years. The primary focus of the Crown’s submission is that this sentencing has to be viewed through the lens that is Friesen, supra. The Crown submits that priority must be given to the principles of denunciation and deterrence.
[28] The Crown further argues that the sentence must be informed by the inherent wrongfulness of the offender's conduct and his high degree of moral blameworthiness. Emphasis is placed on several aggravating factors which includes the high degree of violence, dominance, and control. According to the Crown the accused’s high level of moral blameworthiness coupled with the nature and the extent of the harm done to this child requires a heavy sentence of imprisonment.
The Defence
[29] The defence submits that a fit and proper sentence is a federal sentence of 3 years. The defence stresses the following mitigating factors, the guilty plea, the genuine expression of remorse, lack of prior record, and youthfulness. One of the accused’s motivations for the guilty plea was his sincere desire to spare the victim from enduring the grueling rigors of a trial.
[30] As well, the guilty plea comes without the comfort of a joint recommendation. He fully realizes what he has done and is prepared to accept the flowing consequences. Counsel properly urges the Court to reflect on the principles of proportionality and restraint. The Court should impose a sentence that is “just and appropriate… and nothing more” Friesen, supra at para. 91.
[31] In addition, it is argued that the accused has lived a simple existence free of addiction and other compounding factors which might otherwise get in the way of rehabilitation. The Court ought to consider the accused’s full compliance with strict release conditions without incident. This is suggestive of an ability to commit to a rehabilitation plan once in place. This in turn, will ultimately reduce the accused’s risk to re-offend.
[32] Lastly it is argued that the accused is ready and willing to accept and commit to all programming. Given his stated commitment and relative youth, rehabilitation ought to be stressed.
Principles of Sentencing & Determination of a Fit and Proper Sentence
The Purpose and Principles of Sentencing
[33] In R. v. Thompson, 2017 NSPC 18, Derrick J. (as she then was) provided a concise and insightful overview of the purpose and principles of sentencing. I adopt her comments and use them as a guiding template for this sentence:
The Purpose and Principles of Sentencing
[27] The Supreme Court of Canada has described sentencing as "one of the most delicate stages" of our criminal justice process. (R. v. Lacasse, 2015 SCC 64, para. 1) It is a “profoundly subjective process” (R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] S.C.J. No. 52, para. 46) which requires the careful balancing of “the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence ...” (R. v. C.A.M., 1996 CanLII 230 (SCC), [1996] S.C.J. No 28, para. 91) An appropriate sentence cannot be determined in isolation. Regard must be had to all the circumstances of the offence and the offender. (R. v. Nasogaluak, 2010 SCC 6 (CanLII), [2010] S.C.J. No. 6, para. 44) It is a “profoundly contextual” process in which the judge has broad discretion and must balance “all the relevant factors in order to meet the objectives being pursued in sentencing.” (R. v. L.M., 2008 SCC 31 (CanLII), [2008] S.C.J. No. 31, para. 15; R. v. Lacasse, para. 1)
[28] Section 718 of the Criminal Code sets out the objectives a sentence must achieve: denunciation, deterrence – both specific and general, separation from society where necessary, rehabilitation of the offender, reparations by the offender, and the promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[29] Assessing moral culpability is a fundamental aspect of determining the appropriate sentence: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. (section 718.1, Criminal Code) Proportionality is “closely tied to the objective of denunciation”, promotes justice for victims, and seeks to ensure public confidence in the justice system. The principle of proportionality,
...ensures that a sentence does not exceed what is appropriate, given the blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. (R. v. Ipeelee, 2012 SCC 13 (CanLII), [2012] S.C.J. No. 13, para. 37)
[30] The principle of restraint operates in the sentencing analysis so that what is imposed is “a just and appropriate punishment, and nothing more.” ((R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] S.C.J. No. 28, para. 80)
Legislation: The Criminal Code
[34] The fundamental purpose of sentencing is set out in section 718:
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[35] The fundamental principle of sentencing is set out in section 718.1:
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[36] Other essential sentencing principles are set out in section 718.2. The portions applicable to this case are as follows:
Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders
[37] There is a specific sentencing objective applicable to offences against children. This is set out in section 718.01:
Objectives — offences against children
718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
Denunciation, Deterrence & Rehabilitation
[38] Recently, the Supreme Court of Canada in R. v. Bissonnette, 2022 SCC 23 reflected on the principles of denunciation, deterrence, and rehabilitation:
1. Denunciation “requires that a sentence express society’s condemnation of the offence that was committed. The sentence is the means by which society communicates its moral values”: para. 46.
2. The principle of denunciation “must be weighed carefully, as it could, on its own, be used to justify sentences of unlimited severity”: para. 46.
3. Deterrence comes in two forms, general and specific. Certainty of punishment and criminal sanction “does produce a certain deterrent effect, albeit one that is difficult to evaluate, on possible offenders.”: para. 47.
4. The objective of rehabilitation “presupposes that offenders are capable of gaining control over their lives and improving themselves, which ultimately leads to a better protection of society”. Rehabilitation “is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world.”: para. 48.
Proportionality
[39] The cardinal principle of sentencing is proportionality. The following can be distilled from R. v. Bissonnette, supra:
1. Proportionality is essential to maintaining public confidence in the sentencing process: para. 50.
2. “The sentence must be severe enough to denounce the offence but must not exceed “what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence.””: para. 50.
3. “There is no mathematical formula for determining what constitutes a just and appropriate sentence”: para. 49.
4. The goal of sentencing is to carefully balance “the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.” The assessment of moral blameworthiness must be done through the perspective of the offender’s life experiences and personal characteristics: para. 49.
5. “The relative importance of each of the sentencing objectives varies with the nature of the crime and the characteristics of the offender.”: para. 49.
Proportionality Parity & Individualization
[40] The Supreme Court of Canada in R. v. Parranto, 2021 SCC 46 provided clear guidance with respect to proportionality and how it intersects with the principles of parity and individualization. Several important concepts include:
1. “Individualization is central to the proportionality assessment. Whereas the gravity of a particular offence may be relatively constant, each offence is “committed in unique circumstances by an offender with a unique profile” (para. 58). This is why proportionality sometimes demands a sentence that has never been imposed in the past for a similar offence :para 12.
2. “The question is always whether the sentence reflects the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of each case”: para. 12.
3. The mitigating and aggravating factors of each case must be considered: paras. 17 & 18.
4. “Parity and proportionality are not at odds with each other.” “Consistent application of proportionality will result in parity”: para. 11.
5. Courts cannot arrive at a proportionate sentence based solely on first principles, but rather must “calibrate the demands of proportionality by reference to the sentences imposed in other cases”: para. 11.
6. Proportionality is determined on “both an individual basis” and by comparison with sentences imposed for similar offences committed in similar circumstances: para. 12.
7. A trial judge “must calibrate a sentence that is proportionate for this offence by this offender, while also being consistent with sentences for similar offences in similar circumstances”: para. 234.
8. Parity “is a secondary sentencing principle, subordinate to proportionality (Lacasse, at para. 54), and cannot “be given priority over the principle of deference to the trial judge’s exercise of discretion” ”: para. 234.
Proportionality & Harm to Victims and Community
[41] Supplementing what the Supreme Court of Canada has recently stated about proportionality, the Alberta Court of Appeal previously stated the following in R. v. Arcand, 2010 ABCA 363:
[67] First, though individualized to the case, the sentencing process is not exclusively about the offender. The process is also about the harm to the victim and the community from the crime. Harm properly occupies a prominent place in the sentencing process, representing as it effectively does one of the central elements in the proportionality principle, the gravity of the offence.
[42] The Supreme Court of Canada has specifically stated that the impact of sexual violence against a child has a place in the proportionality analysis: “In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle.”: Friesen, supra at para. 75.
[43] When considering the gravity of the offence, “It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender's actions and the consequential harm to children and their families, caregivers, and communities”: Friesen, supra at para 76.
R. v. Friesen
[44] In this landmark decision the Supreme Court of Canada extensively outlined the guiding sentencing principles for cases involving the sexual abuse of children. Paragraphs 5 and 89 certainly warrant highlighting:
[5] […] we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children's vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament's sentencing initiatives and by society's deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.
[…]
[89] All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender -- the offender is treating the victim as an object and disregarding the victim's human dignity (see R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at paras. 45 and 48). As L'Heureux-Dubé J. reasoned in L. (D.O.), "the occurrence of child sexual abuse is one intertwined with the sexual abuse of all women" precisely because both forms of sexual offences involve the sexual objectification of the victim (p. 441). Courts must give proper weight in sentencing to the offender's underlying attitudes because they are highly relevant to assessing the offender's moral blameworthiness and to the sentencing objective of denunciation (Benedet, at p. 310; Hajar, at para. 67).
[45] In speaking to the intent of Parliament, the Supreme Court of Canada was very clear at paragraphs 42 and 51:
[42] Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code […].
[…]
[51] The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children […].
[46] In Nova Scotia, Justice Campbell in R. v. McNutt, 2020 NSSC 219, succinctly captured the essence of the Supreme Court of Canada’s message to sentencing judges:
[79] In R. v. Friesen 2020 SCC 9, the Supreme Court of Canada set out the law on sentencing for sexual offences against children. The Manitoba Court of Appeal described it as having "pressed the reset button". R. v. KNDW, 2020 MBCA 52. The strong message explicitly sent by the court was that sexual offences against children are violent crimes. They exploit the vulnerability of children and cause profound harm to them, their families and their communities. "Sentences for these crimes must increase." Friesen, at para. 5.
[80] In the judgement the court addresses the past judicial treatment of these offences and takes an approach that clearly and directly focuses on the wrongfulness of the actions and the harmfulness of sexually abusing children. The "new direction" set by the court was to give better effect to Parliament's repeated message that sentences pertaining to sexual violence must increase.
[81] The court noted that the degree of responsibility of the offender is especially heightened and highly blameworthy where an offender recognizes children's vulnerability and intentionally exploits it to achieve their selfish desires. Parliament's decision to prioritize denunciation and deterrence for offences involving children was said by the court to confirm the need for courts to impose more severe sanctions. "Dated precedents" should be treated cautiously.
[82] The court did not set ranges but sent the message that mid-single digit penitentiary terms for sexual offences against children are normal and that upper single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare of exceptional circumstances.
[47] While there is a great deal of direction outlined in Friesen, supra it can be distilled into the following 30 key principles:
1. The protection of children from harm and wrongful exploitation is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. Courts must recognize the wrongfulness of sexual offences against children and the profound harm that they cause: paras. 42 & 50.
2. Personal autonomy, bodily integrity, sexual integrity, dignity, and equality are the core interests protected by the provisions of the Criminal Code dealing with child sexual abuse. Courts must remember to “focus their attention on emotional and psychological harm, not simply physical harm. Sexual violence against children can cause serious emotional and psychological harm that ... 'may often be more pervasive and permanent in its effect than any physical harm'": paras. 51 & 56.
3. Sexual violence against children results in various forms of emotional and psychological harm. Some of the types of harm include loss of sense of self worth, shame, guilt, embarrassment, unresolved anger, a reduced ability to trust others, powerlessness, fear, social isolation, self-destructive behaviour, sleep disruption, unhealthy substance use. These harms "are particularly pronounced for children": paras. 57, 58, 62-64, 79-81.
4. “Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers.”: para. 60.
5. “The ripple effects can cause children to experience damage to their other social relationships. Children may lose trust in the communities and people they know. They may be reluctant to join new communities, meet new people, make friends in school, or participate in school activities.”: para. 61.
6. The resulting harm often extends beyond the child and impacts the child’s relationships with parents, caregivers, and family members: paras. 62 & 63.
7. The resulting harm also extends to the child’s community and society as a whole. There are deep financial costs associated with medical and intervention services as well as the fall out of dealing with resulting social problems. “Sexual violence against children can thus fuel a cycle of sexual violence that results in the proliferation and normalization of the violence in a given community”. Society as a whole is diminished and degraded: para. 64.
8. Because of a child’s vulnerability, "sexual violence against children is especially wrongful": para. 65.
9. "Sexual violence has a disproportionate impact on girls and young women": para. 68.
10. Those from marginalized groups, including youth in the care of a government agency, are disproportionately impacted by sexual violence and particularly vulnerable: paras. 70 to 73.
11. Courts must consider the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle: para. 75.
12. An assessment of the gravity of a child sexual abuse requires a court to give effect to (1) the inherent wrongfulness of the offence; (2) the potential harm to children that flows from the offence; and (3) the actual harm that a child has suffered as a result of the offence: para. 76.
13. Children have a vulnerability. As a result, the sexual abuse of children and the interference with their sexual and psychological integrity, aggravates the wrongfulness: paras. 77 & 78.
14. The wrongfulness and harmfulness of sexual violence against children must be taken into account when determining the offender's degree of responsibility: para. 80.
15. The reasonable foreseeability of potential harm flowing from sexual violence against children must be accounted for when determining the gravity of an offence: para. 84.
16. A key determinant of the gravity of an offence is actual harm: para. 85.
17. Factors related to the gravity of the offence must also be used in determining the degree of moral blameworthiness of the accused: para. 87.
18. The intentional application of force of a sexual nature to a child is "highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child": para. 88.
19. Except for rare cases, it may be inferred that offenders will usually have at least some awareness of the profound physical, psychological, and emotional harm their actions may cause the child: para. 88.
20. All forms of sexual violence are morally blameworthy, however, the fact that the victim is a child increases the offender's degree of responsibility "because children are so vulnerable". An accused’s moral blameworthiness increases when that accused intentionally targets children: para. 90.
21. Any relevant factor which may reduce an accused’s moral culpability must continue to be considered. The proportionality principle requires that the punishment imposed be "just and appropriate... and nothing more": para. 91.
22. Sexual offences are broadly defined and cover a wide spectrum of conduct. As a result, the conduct in some cases may be less morally culpable than in others: para. 91.
23. The personal circumstances of offenders may have a mitigating effect. For example, offenders who suffer from "mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability". As well, “where the person before the court is Indigenous, courts must apply the principles from R. v. Gladue, [1999] 1 S.C.R. 688”: para. 91.
24. In an age of social media, "sexual offenders have been given unprecedented access to potential victims and avenues to facilitate sexual offending", especially through child luring: para. 94.
25. Parliament has given priority to denunciation and deterrence for sexual offences against children and vulnerable victims. In fact, Parliament has amended the Criminal Code to reflect this reality. This is reflected in sections 718.01 and 718.04 of the Criminal Code. As a result, it is no longer open to courts to simply elevate other sentencing objectives to an equal or higher priority: paras. 102 & 116.
26. Mid-single digit penitentiary terms for sexual offences against children ought to be seen as normal, and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. Substantial sentences may be imposed even when there was only a single instance of sexual violence, or a single victim: para. 114.
27. Assaults against children ought to normally warrant a stronger sanction than those against adults: para. 117.
28. The following factors ought to be considered in determining a fit and proper sentence: the age of the victim, the duration and frequency of the abuse, the degree of physical interference, abuse of position of trust or authority, the likelihood of re-offending, and unprotected acts elevating the risk for disease: paras. 122-147, & 139.
29. Level of harm is not equated to the type of physical violation involved. Sexual violence is no less harmful to a victim "when it involve[s] sexual touching or fellatio rather than penetration": at para. 143.
30. It is an error of law to treat the de facto consent of a victim who is legally incapable of consenting as a mitigating factor: para. 149.
Analysis
[48] There is a wide disparity between the position of the Crown and the defence. As a sentencing judge this can be challenging. However, I’ve found the perspective of Justice Paciocco in R. v. P.V., 2016 ONCJ 64 helpful:
[13] My task in arriving at a fit sentence is not to choose between these two polarized positions, nor is it a simple exercise in mathematics. Sentencing is a complex exercise that is to be guided by settled principles of law, and precedents.
[49] The obligation of a Judge in the protection of children can be complex. Part of that complexity comes from the reality that sexual offenders ought to be punished. Further, those who sexually abuse children ought to expect harsh punishment. Parliament has reflected this in section 718.01 of the Criminal Code and within the listed sentencing principles of denunciation, deterrence, and separation of society where necessary.
[50] Punishment, however, can not overstep. The sentencing equation has many variables, and it is an individualized one. No individual sentencing objective is to be applied at the exclusion of all others (R. v. Nasogaluak, 2010 SCC 6 at para. 43). A sentence must be the least restrictive to meet the essential principles of sentencing. This has clearly been outlined in sections 718.2(d) and (e) of the Criminal Code.
[51] Rehabilitation is an essential part of the punishment equation. As stated recently by the Supreme Court of Canada in R. v. Hilbach, 2023 SCC 3 at para. 38: “Rehabilitation must form part of the calculus of all criminal punishment, as a punishment that completely disregards rehabilitation is incompatible with human dignity (Bissonnette, at para. 85; Hills, at para. 141)”.
[52] Furthermore, punishment must always be considered in light of the principles of parity and proportionality, Friesen, supra at paras. 32 & 33. There is a delicate balancing required to reach a just and appropriate sentence. This can be difficult.
[53] Judge Campbell (as he then was) eloquently navigated this delicate calculus in a decision affirmed by the Nova Scotia Court of Appeal in R. v. E.M.W., 2011 NSCA 87:
[18] The judge discussed retribution, which he distinguished from vengeance:
Retribution is punishment. It is objective, measured and reasoned. Vengeance and anger have no place in sentencing. When reason and objectivity give way to expressions of righteous indignation or revenge, a sentence is no longer an expression of a system of values. It has then become an emotional act and not a rational one. It is then not measured or restrained. Justice can be and sometimes should be hard. It must, however, be thoughtfully so. It is important to treat the offender in a way that reflects his level of moral culpability. Simply put, the punishment, and punishment it is, should fit the crime and the person who committed it.
Aggravating Factors
[54] The following aggravating factors are present in this case:
1. The victim is from a vulnerable group. She is a child, and she is also female. Section 718.2(a)(ii.1) of the Criminal Code expressly outlines this as an aggravating factor.
2. The significant impact of the offences on the victim, considering her age. Section 718.2 (a) (iii.1) of the Criminal Code expressly outlines this as a consideration. As outlined earlier there was and continues to be profound harm to the victim in many ways. Consistent with what Friesen, supra has outlined, her injuries went well beyond the physical in many ways. She has left school and has turned to alcohol and drugs. She has lost her sense of self, sense of trust, and struggles with regaining the same relationship with her mother. She lives with heighted anxiety and avoids leaving the house for fear of interacting with others. The accused has left her severely damaged. This victim was left completely discarded having been nothing more than an object used for his own abhorrent gratification.
3. The ages of the victim (13/14) and the offender (22/23) at the time of the offence. The significant age gap reflects a power imbalance between the accused and the victim.
4. The presence of grooming and the use of social media to gain the victim's trust by holding himself out as a source of support and person this child could confide in.
5. The duration and frequency of the sexual abuse. The abuse went well beyond a few short incidents. For a period of three months the accused would engage in vaginal and/or anal intercourse with the victim on a daily basis. The accused wanted and had sex with her “everyday”. She was the daily source of his offensive sexual gratification.
6. The degree of physical interference and wrongfulness of the sexual violence was very high. The abuse included vaginal and anal penetration. These acts were described by the victim as “really rough”. The sexual violence was paired with forced control, physical violence, and domination. There were known consequences for noncompliance which included squeezing hard on her breasts, tapping her on the face, slapping her, punching her, and leaving physical marks on her body. The accused used his nails to leave marks on her body. The acts of sexual violence had a heighted degree of inherent violence and aggression to them.
7. The repeated sexual violence this child endured was defined daily in a very forced control sort of way. The parameters were clearly defined for this child. She was treated as subordinate during the sexual violence. She was directed to play a clearly defined role. The controlling power imbalance was reflected in these defined “roles”. He was the “master” and he was “daddy”. As she stated she “didn’t have a choice on the amount he did it, or how fast he did it, or where he did it, or what he did”. The victim was not only abused she was frequently abused in a very distorted way reflecting dominance and control over her bodily integrity and dignity. She was stripped of any sense of equality. She was treated as and expected to adhere to the reality that she was less than when the sexual violence was unfolding.
8. The level of intrusiveness and violation was further extended by taking nude photos of this child.
9. The offender's lack of insight into the nature and severity of his offending conduct. While the accused now purports to recognize that his actions were wrong his perspective at the time of the offence is concerning. In speaking to the violent acts, the accused stated, “I kind of knew it was wrong but didn’t at the same time in my head, and I don’t really understand why I did it”. It is troubling that when this abuse was occurring the accused lacked clear insight into the reality that this was wrong according to every scale and measure. This is also suggestive of his high need for expert assessment and intervention.
10. The accused specifically advised the child victim that he didn’t want to wait until she was 16 to have sex. He was well in tune with the reality that she was an exceptionally young child. He was undeterred in his eagerness to sexually exploit this child.
Mitigating Factors
[55] The following mitigating factors are present in this case:
1. The accused’s guilty plea and his expression of remorse. This relieves the victim of testifying and thereby having to relive the events. It also ensures a certainty of outcome for the victim, her family, and prosecution.
2. The accused’s relative youth (age 22/23 at the time of the offences and age 27 currently).
3. The accused is a first-time offender with no previous record.
4. This will be the accused’s first custodial sentence and it will presumably have a significant impact on him. Long days in a federal institution will be difficult for someone who has never been there before. I have also considered and given weight to the accused’s circumstances as outlined in Exhibit #1. At a pre-trial hearing the accused, through counsel, requested that this documentation be forwarded to the institution. This will be done. The accused requested that counsel and the court not speak to it during sentencing submissions. Ultimately, I’ve considered it and am satisfied that certain aspects of accused’s circumstances will make life in an institution particularly challenging.
5. The accused’s expressed willingness and commitment to all forms of rehabilitative programing.
Other Factors
[56] I have considered several other factors which do not naturally fit into the traditional categories of aggravating or mitigating:
1. For a period of 3 years and 8 months the accused was bound by strict release conditions. He fully complied with these conditions without incident. The release order required him to report weekly to the police and to be in his residence daily between 10:00 p.m. and 7:00 a.m.
2. The accused has not contacted the victim since the date of his arrest. He has not re-offended in the period of 3 years and 8 months. This is a relevant consideration when the court considers the long-term protection of the public which includes this specific victim.
Range of Sentence: Parity and Cases Involving Similar Circumstances
[57] In Friesen, supra the Supreme Court of Canada declined to impose a starting point or specify a set sentencing range for sexual offences against children. It was noted that doing so would prohibit sentencing judges from being able to determine a proportionate sentence based upon the individual factors present in each case. However, the court did make clear that sentence precedents have traditionally failed to adequately reflect society's current understanding of the extreme harm and impact that sexual violence has on children. As well, and as stated earlier, the Supreme Court of Canada specified that mid-single-digit, upper-single-digit, and even double-digit penitentiary sentences should neither be unusual nor reserved for rare and exceptional circumstances.
[58] I will now summarize several but not all of the cases I have reviewed in an effort evaluate the principle of parity. I keep in mind that comparative cases ought to involve similar offenders committing similar offences under similar circumstances. Unfortunately, this is not a straightforward exercise. It is hardly an exact science due to the inevitability that there will be differences between all cases. For example, some will contain differing degrees of aggravating and mitigating features. This is unavoidable. I do find these cases helpful in the analysis, however, I keep in mind that sentencing is individualized process and proportionality reigns supreme.
[59] R. v. Kabamba-Ntalaja, [2022] O.J. No. 2545 (ONSC):
• Global Sentence: Six (6) years and nine (9) months imprisonment.
• The accused was a first-time offender with no prior record. Following trial, he was convicted of two offences, sexual assault (s. 271), and sexual interference (s. 151). He entered a guilty plea to a single count of assault (s. 266). At the time of the offences the accused was 26 years old, and the victim was 13. The abuse occurred over a four-month period.
• The child and her sisters lived with their mother. At the time of the events the victim’s mother was in a period of transition and going through a separation. She and her children moved around. She worked late hours to make ends meet.
• The accused befriended the mother, the victim, and her sisters. There was never a romantic relationship between the accused and the victim’s mother. The accused began mentoring the victim during neighbourhood basketball games. He eventually grew closer to the family. He was invited to stay overnight at their residence. From time to time, he would sleep on the floor. Eventually, the accused moved in full time. He had his own room in the basement. He was accepted into their family.
• The accused was described as having “played on” the victim’s feelings. He convinced her to have intercourse with him. The first incident involved kissing and touching above her clothes. It progressed to vaginal intercourse on 5 or 6 occasions.
[60] The Crown recommended a sentence of 7 years incarceration while the defence recommended a sentence between 4 to 5 years. The Court stated the following:
[31] Both the Crown and the defence have provided a series of cases, each was factually distinguishable from the present case, but after considering the different cases and the jurisprudence since the Friesen decision, I am in agreement with the Crown that in the circumstances of this case, considering all of the aggravating factors and principles articulated in Friesen, any sentence of less than five years and six months for the s.151 offence would be incorrect. The four-to-five-year range as suggested by Mr. Smith is inadequate.
[61] Given that no two cases are ever exactly alike it is not surprising that there some notable differences between R. v. Kabamba-Ntalaja, supra and the matter before this court. First, Mr. MacNeil has pled guilty. That is a heavy mitigating factor. Second, the court in R. v. Kabamba-Ntalaja, supra found a trust like relationship where the accused had come to be viewed as an adult figure within the family unit. That is absent here.
[62] However, there are aggravating features in Mr. MacNeil’s case which were not present in R. v. Kabamba-Ntalaja, supra. Here there was a significantly higher degree of violence within the acts themselves. The victim was slapped, punched, and left with physical marks on her body. The accused took nude photos of her. As well, the abuse was more frequent. It can be argued that the differences on both sides of the equation somewhat off set each other to some degree. Nevertheless, this case is supportive of the reality that a fit and proper sentence for Mr. MacNeil is above the 6-year range.
[63] R. v. Crane, 2021 PESC 1:
• Global Sentence: Six (6) years imprisonment.
• The 36-year-old accused pled guilty to sexual interference (s. 151(a)). He had no prior record and lived a prosocial life free of drugs and alcohol. At the time of the offences the accused was 35/36 years old, and the victim was 14/15. The accused was her music teacher. There were aspects of grooming and a gradual escalation of sexual abuse. The accused engaged in vaginal intercourse with the victim. He continued to engage in frequent sexual activity even when he became aware that people in his community had been referring to him as a pedophile.
[64] The matter before this court lacks that classic breach of trust relationship which was found to exist in R. v. Crane, supra . However, there are many similarities. Both children developed feelings for the accused, which led them to believe that the accused felt the same. Both accused lured their victims in that they held themselves out as someone these children could confide in. Both have aspects of grooming and significant resulting harm to the child victim. There was a high level of intrusive frequent abuse (intercourse) in both cases.
[65] Again, however, what is absent from the cited case is what the victim in this matter had to repeatedly endure. The sexual abuse she suffered was coupled with disturbing acts of physical violence, domination, and forced control. In fact, that physical violence was a prominent feature of the sexual acts. As well, Mr. MacNeil had the victim engage in frequent acts of anal intercourse and other acts which she described as “rough”.
[66] By all accounts, R. v. Crane, supra also supports a significant custodial sentence for this accused above the 6-year range. I find the facts and circumstances of the matter before this court to be particularly more aggravating while the circumstances of the accused in both cases to be relatively similar. As a result, after reviewing R. v. Crane, supra in the context of this accused and the circumstances of this offence it appears to support a sentence above 6 years.
[67] R. v. Storey, 2021 ONSC 1760:
• Global Sentence: Six (6) years imprisonment.
• After trial the accused was found guilty of sexual interference (s. 151), possession of child pornography (s. 161.1(4)), sharing explicit material (s. 171.1(1)(b)), and assault (s. 266). The accused was 21 years old, and the victim was 13. The accused had a minor unrelated record. It was determined that the accused had excellent prospects for rehabilitation demonstrated by his history of participation in assessment, treatment, and counselling.
• The accused had considerable cognitive impairments and suffered from a significant intellectual disability. Testing revealed that the accused was in the 1st percentile in areas such as of nonverbal communication, emotional memory, affect regulation, moral and ethical judgment.
• The accused developed a brief “relationship” with the victim. Over the course of two to three months the accused engaged in unprotected vaginal intercourse with the victim on “a number of occasions”. During this period there was an exchange of inappropriate intimate images which lead to the two charges under sections 161.1(1)(4) and 171.1(1)(b). The “relationship” ended when the victim was physically assaulted by the accused after an argument.
[68] Ultimately, the Court, held to the direction in Friesen, supra. The court stated that a mid to upper single-digit sentence was appropriate even for a first offender under these circumstances. Having reviewed the circumstances of the offences and the circumstances of each respective accused I remain satisfied that a fit and appropriate sentence remains above 6 years.
[69] R. v. Wood, 2021 NSSC 253:
• Global Sentence: Four (4) years and six (6) months imprisonment.
• The accused was 24 years old, gainfully employed, and had strong family support. He entered guilty pleas to sexual interference (s. 151) and child pornography (s. 163.1(2)). The accused had a prior record for offences of violence. The victim was 15 years old. At the time of the offences the victim was in permanent care and lived in a group home. The accused provided the victim with alcohol and marijuana. The sexual assaults occurred on two occasions. The first was over two days and the second occasion was over three days. The sexual activity included intercourse with the accused who also photographed, and video recorded some of the incidents. At the time of the offences the accused was on a release condition not to have contact with the victim.
[70] While the facts R. v. Wood, supra and the matter before this court share many similarities such as the taking of photos of the victims, there are several material differences. Mr. MacNeil has no prior record compared to Mr. Wood who had a prior record for violence. Mr. Wood also failed to comply with release conditions by contacting the victim. These are certainly relevant distinctions. However, the abuse suffered by this victim was much more extended and continued almost daily for at least 3 months. It was considerably more frequent than the two occasions as outlined in R. v. Wood, supra.
[71] It is certainly not this court’s intention to diminish the seriousness or downplay the level of sexual abused suffered by the child victim in R. v. Wood, supra. Sentencing is a very challenging process. As well I have to be mindful not to get too far into the weeds when trying to navigate the parity aspect of the sentencing equation. As well, the Supreme Court of Canada has adopted a harm-based approach. Nevertheless, the court is obligated to review case precedents and see how they may or may not fit into the parity analysis.
[72] Another obvious distinction in the matter before this court and R. v. Wood, supra is the nature of the sexual violence. Not only did the accused have the child engage in anal intercourse but the tenor of the sexual violence itself was coupled with physical violence and overt dominance and control. This was absent in R. v. Wood, supra.
[73] As stated by the victim, “I basically didn’t have a choice”. Obviously, no child victim can consent to any form of sexual activity under the countless horrific scenarios. However, it is clear that the dynamic of sexual abuse that was this accused and this victim was different than R. v. Wood, supra when it came to the degree of compounding violence and oppression. This victim endured sexual abuse blended with additional elements of physical control, dominance, and force. There were consequences for noncompliance with demands. Those consequences involved the infliction of physical pain and injury.
[74] Having reviewed R. v. Wood, supra, and noting the various material differences the court is still satisfied that the proper sentence in this case is in excess of 6 years.
[75] R. v. R.A., 2021 ONCA 126:
• Global sentence: Five (5) years and six (6) months imprisonment.
• The 35-year-old accused entered a guilty plea to sexual assault (s. 271), making sexually explicit material available (s. 171.1(1)(b)), and two counts of child luring (s. 172). The accused met the 15-year-old child online. After chatting over social media, the grooming behaviour escalated. The accused took the victim to the movies and gifted him a used iPhone. Shortly thereafter the accused began exchanging sexually explicit material. The child moved in with the accused for a short period of time. Over the course of several months the accused touched the victim’s penis over his clothing. There was mutual touching of a similar nature, oral sex, and anal penetration on two occasions. As well during the investigation an undercover officer then posed as a 14-year-old male. The accused sought to have sexual contact with the officer.
• The accused had a difficult childhood and had also suffered sexual abuse. The accused lacked a prior record, expressed remorse, was steadily employed, had community supports, and was committed to rehabilitation.
[76] The accused appealed the five-and-a-half-year sentence. In dismissing the appeal, the Ontario Court of Appeal stated:
[34] Contrary to the appellant's submissions, the trial judge considered significant mitigating factors bearing on the appellant's rehabilitative potential when reaching the decision as to sentence: namely, his openness to therapy; his guilty plea; his expression of remorse; his lack of a criminal record; his strong work history; and his support in the community. In light of the absence of any error in law or principle, the sentencing decision is entitled to deference.
[35] Deterrence and denunciation are of prime importance for offences involving a sexual assault of a child: see the Criminal Code, R.S.C. 1985, c. C-46, s. 718.01; Friesen, at paras. 101-105. Sentences for such offences should be strict. Factors justifying longer sentences include conduct found to be "grooming," as well as the degree of physical interference with the victim's bodily integrity: Friesen, at paras. 125, 138, 153.
[…]
[38] While the Supreme Court did not establish a precise range, it stressed that "mid-single digit penitentiary terms for sexual offences against children are normal": Friesen, at para. 114. This court has also stated that adults who sexually abuse children "must face the prospect of a significant penitentiary term": R. v. Woodward, 2011 ONCA 610, 276 C.C.C. (3d) 86, at para. 75…..
[77] I am satisfied that R. v. R.A., supra supports a sentence in excess of 6 years.
[78] R v. Lemay, 2020 ABCA 365:
• Global Sentence: Five (5) years and six (6) months.
• The 35-year-old accused pled guilty to sexual interference (s. 151) and child luring (s. 172.1(1)(b)). The victim was 15 years old and the daughter of his friend. The accused began texting the victim. His texts progressed to daily sexually explicit messages which included sending pictures of his penis. He encouraged the child to send him pictures of her breasts, buttocks, and vagina. The sexual interference consisted of five instances over five months. The acts included digital penetration, putting his penis in her mouth, and having her perform oral sex on him. The accused attempted vaginal intercourse but was stopped when it became painful for the child.
• The accused suffered from depression, anxiety, and PTSD. He was also sexually abused as a child. He expressed remorse and lacked any prior record. The accused identified as Indigenous, and the court considered several Gladue factors. A forensic assessment noted the accused as “average to moderate-low risk” for sexual recidivism.
• The complainant described the harm she had suffered which included, "trust issues, depression and self-harm in the form of cutting her arms and legs". The relationship with her father had deteriorated as she believed he was angry and disappointed with her.
[79] The trial court sentenced the accused to a total of three and a half years imprisonment (two and a half years for the sexual interference and one year for the child luring) followed by two years probation. The Crown appealed seeking a global sentence of eight years.
[80] Before turning to the fitness of sentence the Alberta Court of Appeal did an extensive review of the law with respect to what constitutes a position of trust. The Court held that such a trust relationship existed, and this was an aggravating factor: paras. 24-35.
[81] The Alberta Court of Appeal reiterated that the focus of sentencing must remain on the harm as opposed to an oversimplified linear relationship between the number of incidents and quantum of sentence:
[55] […] the focus of sentencing is on harm, not on the number of incidents except insofar as it contributes to harm. As explained in R v Boucher, 2020 ABCA 208 at para 24:
The number of assaults, the duration of the offence, and the intensity of the assaults are relevant factors in sentencing, although the key factor is harm to the child: Friesen at paras 50, 74, 77, 132. At trial, it was conceded that the multiple acts were an aggravating circumstance. Repetitive offending increases moral culpability, and charges that cover "multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime": Friesen at paras 131-3. There cannot, however, be any linear mathematical relationship between the number of assaults and the sentence. It is not a reviewable error merely because the sentencing judge did not scale the sentence directly to the number of assaults. As noted by Peppall J.A. in R v Stuckless, 2019 ONCA 504 at paras 135-137, 146 OR (3d) 752, even one instance of sexual abuse can permanently alter the course of [a] child's life, and that rather than focusing on the number of assaults a child experienced the focus should be on the harm suffered by that child. Whether the sentence is demonstrably unfit must be measured globally.
[82] The Alberta Court of Appeal substituted a sentenced of four years for the sexual interference and 18 months for the child luring, the sentences were to be served consecutively. This resulted in a total sentence of five and a half years.
[83] Turing back to the matter before me, I have reviewed the many ways this violence has impacted this child. The impact has lasted years and remains an impediment to many key aspects of her healthy development. She has turned to self medicating through the use of substances, dropped out of school, and stays at home for fear of building relationships with others. On the scale that is level of harm to the victim, this child victim scores very high. Such a reality pulls the scale heavily in favor of a sentence that is in excess of 6 years.
[84] R. v. K.M., 2020 NSSC 278:
• Global Sentence: Five (5) years imprisonment
• After trial a 21-year-old accused was found guilty of sexually assaulting a child victim who was 15. The accused had an adult criminal record, since the offence, and a youth record. He was described as in need of supports for mental health and addictions. His life appeared to lack ambition and structure.
• The facts related to a single incident; however, they were particularly aggravating. On the date of the offence the accused was introduced to the victim through a mutual friend. He invited her upstairs, telling her he had a question for her. Once in the room he began kissing her. She pushed him away and he threw her down on a mattress and pinned her down. He pulled off her clothing and forced intercourse.
[85] In ordering a 5-year sentence, experienced local Supreme Court Justice Murray in his wisdom stated:
[38] In this case there are many aggravating factors that warrant a lengthy term of imprisonment, in keeping with increased sentences for sexual violence involving children as set out in detail in Friesen. These were physical acts of aggression meant to dominate and control. This type of violation of bodily integrity and personal dignity must be met with serious consequences if "just sanctions" is to be accorded its proper meaning.
[40] In addition, the court in Friesen set priorities in terms of the objectives. In these circumstances it is difficult to elevate the Accused's age as a mitigating factor to the same level as denunciation and deterrence.
[86] I adopt these statements and find them directly applicable to the case before this court.
Defence Cases
[87] In addition to R. v. Wood, supra noted earlier the defence submitted several cases in support of their position for a three-year sentence. I have considered them.
[88] R. v. Fisher, 2020 NSSC 325:
• Global Sentence: Two (2) years and three (3) months.
• A 26-year-old accused was found guilty of sexual touching while in a position of trust (s. 153(1)(a)). The victim was 17 years old when the offences occurred, but the accused had known her since she was 14. The accused was her youth pastor at a Baptist Church. Over a three-year period, he became her spiritual advisor and mentor. He acted as a confidant and friend. He was described as grooming the victim for a sexual relationship. He would chat with her over social media, tell her she was beautiful, and refer to her as his girlfriend. When the victim turned 17, he told her he had feelings for her and made sexual comments to her via webcam. The sexual exploitation occurred in the five-month period before the victim turned 18. The sexual conduct included kissing, touching, digital penetration, oral sex, and sexual intercourse on a limited number of occasions.
• The accused had no prior record and a positive presentence report. He had many family and social supports, was employed, well educated, and expressed remorse. He was described as having little risk to re-offend and had high prospects for rehabilitation. Just prior to sentencing he was employed at St. FX University as the coordinator for students of African descent. An Impact of Race and Cultural Assessment (IRCA) was completed to assist in the sentencing. The Court properly considered the accused’s “cultural background as an African Black Caribbean immigrant to Nova Scotia” and the impact of systemic racism. The court stated “I fully accept that there is an overrepresentation of African Canadians (including those of Caribbean decent) in custody in Canada as a result of systemic discrimination”: para. 88.
[89] While I have given this case considerable assessment, I do feel that it is a bit of an outlier compared to the vast number of post-Friesen, supra authorities dealing with similar circumstances. I’m comfortable in concluding that this case is specific to itself. In some ways it speaks directly to what the Supreme Court of Canada contemplated in Friesen, supra when they stated that a trial judge “must calibrate a sentence that is proportionate for this offence by this offender”: para. 234.
[90] In addition to being factually different the circumstances of that accused were very different than those of Mr. MacNeil. The court in R. v. Fisher, supra did exactly what was contemplated in R. v. Bissonnette, supra which was to consider sentencing through the perspective of the offender’s life experiences and personal characteristics. They were very different and as such it is difficult to draw a parity parallel between that case and the matter before this court.
[91] R. v. CDC, 2021 NSSC 287:
• Global sentence: Twenty-two (22) month custody.
• After trial the accused was found guilty of sexually assaulting the child victim. The accused did not have a prior record. The child victim and her family lived with the accused. The accused was considered part of their family and acted as the victim’s babysitter. On two occasions the accused masturbated in the presence of the victim. During one of the two occasions he ejaculated and placed semen on the victim and placed his mouth on her pelvic area.
• Having reviewed the case law, the circumstances of the accused and offence, and impact on the victim, the court found the appropriate sentence in the circumstances to be between 18 and 30 months.
[92] Clearly, the facts of these offences and the resulting impact on the victim are very different. As a result, this case is of very limited application in assessing parity.
Decision
[93] This child was repeatedly subjected to extreme violence. The resulting trauma has impacted almost all aspects of her life. She was pulled into a distorted predatory reality where she was reduced to nothing more than a subservient object for the accused’s sexual gratification. The sentence must speak to this horrific reality.
[94] I have considered the submissions of counsel along with the principles of sentencing. I have balanced the aggravating and mitigating factors in this case in conjunction with the principles of proportionality and parity. All of this has been viewed through the lens, which is Friesen, supra. Many case precedents have been reviewed, some of which have been outlined above.
[95] Finally, I have considered the principles of totality and restraint. The Court is properly obligated to give a “final look” before reaching a firm conclusion on sentence. As stated, the ultimate sentence must be just and appropriate but no more than is necessary. In this part of the analysis, I have given heavy weight to the accused’s guilty plea, expression of remorse, his youth, and prospects for rehabilitation. But for these factors the sentence might well have been different and justified.
[96] Accordingly, a fit and proper sentence for this accused in this case is 8 years. As stated, I have considered the heavy mitigating factors of the accused’s guilty plea and his youth in arriving at this conclusion. I’ve turned my mind to the concern that such a lengthy sentence can sometimes be crushing, especially for a first-time offender. It is a significant sentence for what was a significant protracted pattern of sexual abuse. I am hopeful that the accused will demonstrate a commitment to all treatments and interventions offered to him while at the institution and upon his eventual release. However, I will not be adjusting the global sentence downward. This court is properly exercising totality and restraint by not going higher than what is necessary after the delicate balancing, which is this accused, this victim, and these circumstances.The sentence will be 8 years imprisonment less credit for remand.
[97] The accused will be given credit for pre-trial custody of 1.5 times the 40 days he has spent in custody for total credit of 60 days. The net sentence after remand will be 7 years and 10 months.
ANCILLARY ORDERS
[98] There will be the following ancillary orders:
1. A section 490.013(2.1) order to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for 20 years.
2. A section 109 order prohibiting the accused from possessing any firearms, ammunition, and other weapons as defined by the Criminal Code for 10 years.
3. A section 487.051 DNA order. Sexual assault is a primary designated offence under the Criminal Code.
4. A section 743.21 order prohibiting communication with A.B. while the accused is in custody serving his sentence.
5. A section 161 order for 20 years specifically prohibiting the accused from:
(a) attending a public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;
(a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where A.B. ordinarily resides;
(b) seeking, obtaining or continuing any employment, whether or not the employment is renumerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority toward persons under the age of 16 years;
(c) having any contact - including communicating by any means - with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the Court considers appropriate.
D. Shane Russell, JPC