Supreme Court

SUPREME COURT OF Nova Scotia

Citation: R. v. SJM, 2021 NSSC 235

Date: 20210730

Docket: CRH 491394

Registry: Halifax

Between:

Her Majesty The Queen

 

v.

SJM

 

Judge:	The Honourable Justice Peter P. Rosinski
Heard:	July 13, 2021, in Halifax, Nova Scotia
Counsel:	Alicia Kennedy and Jennifer Crewe, for the Crown Kathryn Piché, for SJM

 

 

The Court

 

Introduction

 

[1] Mr. M was arrested and charged with these offences on April 10, 2018. He is before the court for sentencing, based on his guilty pleas to having committed offences against his stepdaughter “A” as follows:

1.     Between April 11, 2013, and December 28, 2015 – s. 151 Criminal Code (“CC”);

2.     Between April 11, 2013, and December 28, 2017 – s. 163.1(2) CC;

3.     Between the 27^th day of December 2015 and the 28^th day of December 2017 – s. 153 CC; and

4.     Between December 28, 2017, and April 9, 2018 – s. 271 CC.[1]

[2] The facts of the offences are contained in an Agreed Statement of Facts (“ASF”) which I have anonymized and attached as Appendix “A” to this decision.[2]

[3] The victim impact statements of “I” and “A”, speak pointedly to the very serious damage and collateral consequences that Mr. M’s criminal conduct has caused, and will continue to cause, to each of them individually, and to their family unit and social circle.

Position of the parties on sentencing

 

1-The Crown

 

[4] The Crown’s position regarding his sentencing based on its brief is as follows:

“[SJM] sexually abused his stepdaughter from the time he first became her stepfather when she was 13 years old until she turned 18. He used her to gratify his own sexual urges and penetrated her mouth, vagina, and anus on countless occasions – sometimes with his fingers, sometimes with his tongue, sometimes with his penis, and sometimes with sex toys. In addition to the repeated physical violations of her body, he took countless images of her, producing child pornography that will continue to exist long after these proceedings have concluded. He destroyed the victim’s childhood, disrupted her loving relationship with her mother, and completely derailed her normal emotional development. He abused his position of trust and authority. The only sentence fit and appropriate in these circumstances is a lengthy term of imprisonment in a federal penitentiary. The Crown urges the Court to impose a sentence of 9 years with ancillary orders.

Facts

Mr. M has signed an Agreed Statement of Facts which form the basis for the guilty pleas that were entered on January 5, 2021.

Some key features of the facts merit special attention:

1.      The victim came to Canada at age 13 from [outside Canada] to join her mother [“I”] and her mother’s new husband, [SJM];

2.      At the time she arrived in Canada, she was fully dependent on Mr. M for all of her needs;

3.      The sexual abuse started almost immediately upon her arrival;

4.      It began with touching and Mr. M exposing his erect penis to the victim;

5.      It progressed to digital penetration of the victim and making the victim masturbate Mr. M, then vaginal penetration of her vagina with his penis;

6.      The vaginal penetrative sex continued for years, and was done without protection despite Mr. M ejaculating inside the victim;

7.      Mr. M attempted anal penetration with his penis. When that was unsuccessful, he penetrated the victim’s anus with sex toys;

8.      The victim became suicidal;

9.      Mr. M was controlling and wouldn’t let her see her friends or have a relationship with boys her age;

10.  The victim’s view of Mr. M became completely distorted – despite the abuse she was suffering, at times she thought she was in love with him and there was discussion of getting married;

11.  Mr. M took nude photographs of her from early on;

12.  Mr. M provided the victim with alcohol and money to buy marijuana. She used marijuana to numb herself; and

13.  The victim did not disclose for fear of hurting her mother and their family. She blamed herself and thought it was her fault.

A review of the procedural history is warranted, as well. The Information was first in Provincial Court on April 16, 2018. It was set down for preliminary inquiry twice – on December 12, 2018, and August 26, 2019 – before the Crown direct indicted. The Indictment came before Supreme Court for the first time on August 29, 2019, and the trial was scheduled to commence on January 5, 2021. Mr. M entered his guilty pleas on the first date of trial. It cannot be said that any Court time was saved by reason of the guilty pleas.

Criminal record

The accused has one conviction that post-dates the offences before the Court. It is for breaching a house arrest condition. He was sentenced to 30 days in custody. A post-dated conviction can provide relevant information regarding character, likelihood of rehabilitation, specific deterrence, and the need to protect the public.  R. v. Morgan, 2004 BCCA 628 at para 14.

[5] I include here that Mr. M testified to the effect that while he was in custody between May 16, 2018, and March 25, 2020 there were numerous lockdowns in Burnside jail, which he characterized as happening “a lot”.  He catalogued these in Exhibit 7 – the disruptions which prevented inmates being permitted out of their cells as usual, were not particularized by Mr. M regarding the duration thereof on each of the dates identified by him, but I accept there were some disruptions to the regular jail routine during his time in custody.

[6] Aware that Mr. M was claiming an enhanced pre-sentence incarceration credit due to the conditions prevalent during his incarceration, the Crown called testimony from Deputy Superintendent (“DS”) Richard Verge (Central Nova Scotia Correctional Facility, aka ”Burnside Jail”).

[7] In summary he testified that:

Through the course of Mr. M’s incarceration from May 16, 2018 to March 25, 2020, he was housed at the Burnside Jail except for: July 20 to August 14, 2018 when he was in the Cape Breton Correctional Facility; and at the Southwest Correctional Facility between November 16 and 19, 2018;

Mr. M was in protective custody and spent the vast majority of his time in such general population cellblocks including N-2, W-6 where typically prisoners were permitted 12 hours out of their cells in the day room areas and outside airing courts. He spent an insignificant part of his time in the HCU (healthcare unit – to which admission must be obtained by permission from the Nova Scotia Health Authority) and 5 days in the North 4/CCU where he was under more restrictive conditions;

He acknowledged that Mr. M worked in the laundry, and explained that no matter how serious conditions in the jail were, including the presence of Covid 19, the laundry was “the last thing that would be shut down” because it was such an essential service to the institution.

[8] DS Verge testified that no records were specifically kept of generalized lockdowns, which he pointed out may affect an individual, a specific range or the entire institution. He could not therefore say whether Mr. M’s list was accurate or not, nor if there were disruptions, what part of the institution was affected, or what were the nature and duration of any claimed lockdowns as referenced by Mr. M’s listing.  He added that the institution only considers a situation to be a “lockdown (in relation to a single cell, cellblocks, range, or even the entire institution) when inmates are in a state of “close confinement” – i.e.  when inmates have their residual liberty materially reduced within the institution below the level that is generally available to the general population inmates – which is approximately 10-12 hours a day. In any case, even when in true (maximum) “close confinement”, at a minimum inmates must always have at least two hours per day meaningful contact with their peer inmates.

[9] It is also important to note that Mr. M was not claiming at any time he was singled out in “lockdowns” for disciplinary or other reasons (“administrative” – safety and security). His evidence is to the effect that he was incidentally affected by general lockdowns.

[10]         In relation to his generic references to “lockdowns”, I note the court is well aware of the different forms of lockdowns associated with the Central Nova Scotia Correctional Facility as a result of having frequently heard habeas corpus applications over the time interval May 2018-March 2020.

[11]         Moreover, as testified to by DS Verge, these lockdowns could include him being incidentally confined to his cell for as little as one hour daily less than the usual 10 to 12 hours outside of cell.

[12]         DS Verge noted that in relation to most generalized lockdowns, which incidentally cause an inmate to be confined to their cell, no specific offender-centric records are kept.

[13]          He also noted that the laundry service, where Mr. M worked, was “the last thing” that would be shut down if there were disruptions in the institution because it was such an essential service. Therefore, the impact of such disruptions would have been less on Mr. M, because he would likely have been permitted out of his cell more often because of his laundry work, than other affected inmates during generalized “lockdowns”.

[14]         Though I acknowledge that unusually adverse conditions experienced during incarceration may lead to an enhanced remand credit beyond 1.5 days for every day served in custody (e.g. see R v Lambert, 2020 NSPC 39 at paragraphs 75 and 99, where a global one year reduction from an 18 year sentence was given) - this is not such a case.

[15]         While I am satisfied there were some lockdowns that affected Mr. M, I am not satisfied that this was a sufficiently common experience to him, which materially adversely affected his experience while in custody – therefore I would not consider an evidentiary basis has been established for an increased pre-sentence detention credit.

2-Mr. M

 

[16]         Similarly, from his brief:

“… Mr. M will have spent a total of 383 days under house arrest. Affording a ratio of .5:1 day credit [per R v Balfe, 2019 NSSC 193 per Wright J.] and rounding up to the nearest day, Defence requests Mr. M be granted 192 days’ credit for house arrest.… [and] ‘enhanced’ 1.5:1 credit for presentence custody… Mr. M spent 10 days in custody from April 10 – 19, 2018… After his second arrest on May 16, 2018 [for the breach of the house arrest condition in his release conditions for which he was sentenced on August 26, 2019, to 30 days custody] Mr. M spent a total of 680 days in pretrial custody. 30 of those days were spent serving a sentence for his breach. The total number of days served in pretrial custody, then, is 660 [At the sentencing hearing, Mr. M’s counsel corrected this, that only 20 of the 30-day sentence should properly be considered as served time due to statutory remission – thus the time served on remand is 10 days greater].

 

Accounting for the time spent by Mr. M on house arrest and in remand custody, Defence seeks a credit of 1182 days… [192 days for the house arrest based on a .5:1 ratio, and 990 days for the remand custody based on a 1.5:1 ratio].

Following from the above, it is respectfully submitted that a fit sentence for Mr. M is 3 ½ years incarceration, equating to three months’ incarceration after application of the pretrial detention credit [at the time of the writing of the brief March 8, 2021]. This sentence is within the range and consistent with sentences imposed on in similar circumstances in Nova Scotia in both pre-and post-Friesen decisions.” [At the sentencing hearing his counsel indicated that by the time he is sentenced on July 30, 2021, he should properly be sentenced to “time served”]

[17]         Mr. M testified.

[18]         In summary, he testified about his health conditions and how he said they made his pre-sentence (and will make his post-sentence ) incarceration more difficult, particularly because of his concern for his personal safety and the fact that his “lung condition” (which was not specifically identified, but he stated it was related to a work injury received while employed with the Canadian military) made it dangerous for him to be around any level of airborne irritant particulate, including smoke from cigarettes, in the airspace around him.

[19]         He testified about the “medications” he was taking while in custody – see Exhibit 1.

[20]         I noted that many of them did not require prescriptions, and were not necessary “medications”, but aimed at general pain relief. He also testified about the “medications” he is now taking, and presumably will be in the foreseeable future.

[21]         While I accept that he has some health conditions, their effects on him may be fairly characterized as largely immaterial regarding his sentencing.

[22]         Mr. M testified that he tried to use his time productively while he was in Burnside jail:

•        He was a regular and reliable member of the inmate laundry complement which required him to work Monday to Fridays 9-11 AM and 1- 3 PM;

•        He also worked as a cleaner in the Burnside Jail outside the range; and

•        Was involved with the book club with the John Howard Society /and the gardening group – see Exhibit 2.

[23]         Mr. M also made what appeared to be a sincere statement to the court pursuant to s. 726 CC. It was a spontaneous and emotional statement indicating at length that he was truly sorry for his actions, did not expect forgiveness from the victims, who he hoped would heal, and that he hoped to become a better person.

[24]         Mr. M plead guilty on January 5, 2021, which was to be the first day of his trial. A guilty plea is recognized as an expression of remorse by an accused.

[25]         The Agreed Statement of Facts was signed on January 3, 2021.

[26]         I accept that there were negotiations between counsel that preceded the formalized agreed facts, and that Mr. M’s guilty plea is a mitigating factor. It is mitigating because, although late:

1.     It spared both “A” and “I” from having to testify;

2.     It still saved some judicial resources – by not requiring a judge’s time in hearing the matter and giving reasons for an outcome – and potentially a lengthy appeal process;

 

3.     It also saved other public resources by not requiring the attention and attendance in court of Crown counsel, police and civilian witnesses; and

 

4.     The Agreed Statement of Facts committed him on sentencing to these indisputable facts-and without a joint recommendation from counsel on sentencing that would generally have bound the sentencing judge (see R v Anthony-Cook [2016] 2 SCR 204).

[27]         On the other hand, from the time of his arrest on April 10, 2018, until the later part of 2020, both victims lived with the anxiety and uncertainty of whether they would have to testify.

[28]         I nevertheless accord significant weight to his guilty plea, while recognizing that there was some incriminating real evidence, not just testimonial evidence that would have been called at his trial.

The personal circumstances of Mr. M

 

[29]         The Pre-Sentence Report dated March 8, 2021, sets out his background:

He was born in 1972 – his brother was born in 1974. His parents divorced when he was 6 years old. He remained living with his mother, which he described as an unstable environment given his mother’s drug addiction issues and neglect of him. He has not spoken with her since 2003.  When he was 13 years old, he moved in with his father and stepmother. His relationship with his father was always positive. He recalled a positive home environment that had rules and was fair. As a result of his father’s employment, he moved around within Canada in his teenage years until he enrolled with the Canadian military. His stepmother passed away in 2014.

 

He attended university. He first married in 1995- they separated in 2003. There were no children of that relationship.

 

In 2004, he married his wife “I”-the mother of A [born 1999-she moved in with her mother and Mr. M in April 2013, having previously lived outside Canada with her father from 2004 – April 2013]. In 2010, a son, “M” was born to Mr. M and “I”.

 

In 2017 Mr. M and “I” separated. “A” continued to spend time at his home until on April 8, 2018, when she disclosed the sexual abuse to her mother. This led to his arrest on April 10, 2018.

 

He was released on house arrest on April 19, 2018 – he remained living in the matrimonial residence in Nova Scotia.

 

On May 16, 2018, he was arrested for breaching the house arrest condition. He was detained in custody until March 25, 2020 (concurrently serving the 30-day sentence as well). Thereafter, he lived on house arrest with his father outside Nova Scotia, until his appearance for sentencing on July 13, 2021.

 

He has worked throughout his life, including 28 years with the Canadian Armed Forces.

 

Following a medical release in 2009, he worked as a civilian member for the military as a network technician for 10 years. He retired from the military in 2018. He also has a permanent disability pension. He is “prescribed medications for arthritis, nerve pain and blood pressure” issues. He has “lung issues that resulted from an incident [outside Canada] during his service… [and is] reported to have post-traumatic stress disorder [including physical injuries, due to his past workplace experiences, including 2 tours in Afghanistan and time spent in the Persian Gulf].”

 

[30]           He has no prior criminal record. Many cases have noted however, that generally it is not a significant mitigating factor that sexual offenders have no prior criminal record.  This Court can only consider the May 16, 2018, breach of the house arrest condition in assessing his rehabilitative potential in future, not as an aggravating factor on this sentencing.

What is an appropriate sentence for these circumstances and this offender?

 

[31]         The Crown seeks 9 years incarceration – Mr. M says his sentence should be 3 ½ years incarceration, which after pre-sentence credits will leave a sentence of “time already served”.

i)                   Ancillary Orders

[32]         There is no significant disagreement as to the ancillary orders and I will order them as follows  pursuant to:

1.     s.109(2) – firearm/explosives prohibition until 10 years after release from imprisonment;

2.     s. 487.051 – DNA order;

3.     s. 490.013 (2.1) for his lifetime –SOIRA /sex offender order;

4.     s. 161-until 7 years after his release from imprisonment.[3] This order will also be subject to an exception in relation to his son “M” insofar as contact is permitted by a court of competent jurisdiction (which I would expect would address the “best interests” of M in making that determination);

5.     s.743.21- prohibition of communication with “I” and with “A” during the custodial portion of his sentence, except through a lawyer, or as otherwise permitted by a court of competent jurisdiction; and

6.     ss. 164.2 and 490.1 CC forfeiture orders.

[33]         Mr. M contested whether all the seized items should be forfeited.

[34]         He argues they are not all shown to be more likely than not per s. 490.1 “offence related property… related to the commission of the offence” or per s. 164.2 “[things] used in the commission of the offence(s) [i.e. child pornography]”. The onus is on the Crown.

[35]         The items seized are listed in paragraphs 7 and 8 of the ASF. Mr. M argues that an examination of paragraphs 6 and 9 of the ASF clearly indicate that not all the seized items are exclusively Mr. M’s property.

[36]         I am satisfied more likely than not that, although some of the items in paragraph 8 may have been or also been the property of “I” per para. 6, they were likely all “related to the commission of the offence(s)” and in these circumstances they should all be forfeited per s 490.1.

[37]         Regarding the items listed in paragraph 7, I note that the ASF states that:

 “Forensic analysis of the electronic devices was attempted. Some were locked and not able to be examined. However, 4 devices yielded 585 deleted images that were categorized by police as child pornography. Many appear to be of “A”… From the HP laptop that was found in the master bedroom… From the LG cell phone retrieved from the nightstand in the master bedroom… Another LG cell phone that was found in the nightstand in the master bedroom… And yet another that was found in the garbage in the master bedroom”.

 

[38]         In addition to hardcopies of child pornography seized, only these four items have been directly identified as containing child pornography and a s. 164.2 order is clearly appropriate.

[39]         On the other hand, it is a reasonable inference, and I am satisfied more likely than not, that each of the other electronic devices that were unable to be accessed because they are locked, also likely contain child pornography.

[40]         Should Mr. M identify devices that he is prepared to unlock, and does so, and are not found to contain child pornography after examination, they may be returned to him. Mr. M shall have 60 days from the date of the order to unlock any of these devices otherwise they are permanently forfeited.

[41]         I direct the Crown to create forfeiture orders which reflect my reasons.

[42]         I waive the victim surcharge on hardship grounds per s. 737(2.1) CC.

ii) The appropriate period of incarceration

 

[43]         An appropriate sentence flows from a careful examination and application of: the principles of sentencing contained in the Criminal Code of Canada, and the binding and persuasive jurisprudence in relation to other sentencing cases that involve similar offences, committed by similar offenders in similar circumstances, which creates the applicable “range of sentence” – per Bateman JA in R v Cromwell, 2005 NSCA 137 at para. 26.

[44]         The offences committed were:

1.     s. 151 - touching for a sexual purpose of a person under 16 years of age “A” by Mr. M (applicable April 2013 until December 2015);

2.     s. 153 - Mr. M, being in a position of trust or authority did for a sexual purpose touch the body of a ‘young person’ (defined in section 153: “means a person 16 years of age or more but under the age of 18 years”) “A” – applicable from December 2015 to December 2017), and

3.     s. 163.1(2) - did make, print, or publish, or have in his possession for the purpose of distribution or sale, child pornography (between April 2013 and December 2017).

4.     s. 271 - sexual assault by Mr. M upon “A” (between December 17 to April 2018).[4]

[45]         Though he pled guilty to the charge as worded, the factual admission by Mr. M in the ASF is limited to that he made child pornography. There is no express admission, nor can an inference be drawn beyond a reasonable doubt, that Mr. M did publish or have in his possession for the purpose of distribution or sale, child pornography.

[46]         While there is no proof of those particularized offences, I am satisfied beyond a reasonable doubt that “A” reasonably fears that he may yet (and already has done so)  “print or publish or have in his [continued] possession for the purpose of distribution of sale” child pornography depicting her. In that respect, it is an aggravating factor on sentence.

[47]         The ASF includes: “he took nude photos of her from early on… He threatened that he would tell her boyfriend everything if she didn’t send him nude photos… They would have video chats. He would ask her to show him her breasts or other parts of her body – she believes he has taken screenshots from those videos.”

[48]         Mr. M (the offender) had no prior criminal record, at all relevant times was an adult, and stood in the position of parent to the victim “A”.

[49]         Regarding the circumstances of the offences, within a month of moving in with Mr. M, her mother, and her 3-year old brother, “A” had fallen asleep to wake up to find Mr. M with his erect penis between her legs – “that is how everything started”.

[50]         The offences persisted from April 2013 to April 2018 when ”A” was between 12 and 17 years of age. The Agreed Statement of Facts contains the extensive factual admissions regarding the circumstances of criminal behaviour Mr. M.

[51]         Many cases have been cited to me as useful “precedents”. Binding decisions, those from the Supreme Court of Canada and our Court of Appeal, may not all be expressly referred to herein by me, but I have certainly considered them.

[52]         As to what are potentially characterized as “persuasive decisions”, I suggest they should involve sufficiently similar offences, committed in similar circumstances by similar offenders, (and involve the application of the same, or at least similar, legislative provisions that are relevant to the case at Bar) and show a proper appreciation and understanding of the applicable legal principles.

The range of sentences

 

[53]         Let me then turn to an examination of cases that are helpful in relation to establishing the applicable range of sentence(s) in Mr. M’s case.

 

[54]         This can be somewhat complicated when a court is considering sentencing on four different offences committed within three overlapping time intervals. An exact matching scenario for the circumstances of an offender and circumstances of the offences is very unlikely to be found. On the other hand, the section 271, 151 and 153 offences each carried the same maximum sentence and are sufficiently similar insofar as what are the circumstances and constituent elements of the offences, and the time intervals generally do run consecutively.

[55]         Therefore, it may be helpful to examine the range of sentences for the sections 151, 153 and 271 offences, and separately examine the range of sentences for Mr. M’s guilty plea to making child pornography.

[56]         Firstly, let me address a general issue raised by Mr. M.

[57]         He argues that the pre-Friesen Nova Scotian jurisprudence remains largely determinative to Mr. M’s sentencing.

[58]         The Crown argues the contrary – it says Friesen “hit the reset button”.

[59]         The Crown interprets Friesen as expressly having rejected most, if not all, of the previous sentencing jurisprudence.

[60]         The court in Friesen cited two general reasons for their criticisms of the existing sentencing jurisprudence:

1.     Because those cases have not sufficiently recognized the impact of legislative changes in 2005 and 2015 which effectively required more deterrent sentences for sexual offences against children across the board; and

2.     Neither do they sufficiently understand and appreciate that the sentencing court’s emphasis should be on the violations of victims’ personal autonomy, bodily integrity, sexual integrity, dignity, and equality, which require courts to focus their attention on the emotional and psychological harm, not simply physical harm.

[61]         As the court stated in Friesen:

“It follows from this discussion that sentences must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence.… Courts must impose sentences that are commensurate with the gravity of sexual offences against children… We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences… are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case.” (paras. 74-76)

 

[62]          Mr. M cites my reasons in R v WGL, 2020 NSSC 323 for his proposition that (from Friesen) “[an] upward departure from precedents” prior to [ R v Friesen, 2020 SCC 9– reasons released April 2, 2020] as suggested by the Friesen court, is not appropriate in Mr. M’s case, because pre-Friesen Nova Scotian jurisprudence does “adequately reflect or recognize both the gravity and harmfulness of sexual offences to children”.

[63]         Firstly, WGL is distinguishable from the present case.  The offences in WGL occurred between 1997 and 2000 which predated both the 2005 and 2015 legislative changes. The legislative regime was different. Thus, the most relevant precedent sentencing cases should have been limited to those before 2005 and scrutinized through the lens of the applicable Friesen reasoning.

[64]         Sentencing remains an individualized process. The circumstances of the offences were different. They occurred while the complainant was between 9 and 14 years of age. WGL was found guilty of one incident of digital penetration of the vagina, 25 to 30 instances of simulated sexual intercourse while both were clothed; and two instances of stand-alone tongue in mouth kissing. No child pornography was involved.

[65]         No victim impact statements were filed. The Crown sought a 3 to 5 year sentence, and the Defence suggested 18 to 24 months. I sentenced him to 3 ½ years incarceration.

[66]         My comments in WGL were not intended to suggest that all, or even most, previous sentencings of sexual offenders who have committed similar offences against children remained good law.

[67]         It must also be borne in mind that sentencing courts are bound by the existing precedents set by the Court of Appeal (e.g. R v EMW, 2011 NSCA 87).

[68]         In particular, one should carefully consider what is “a precedent” case.

[69]         A “precedent” sentencing case, which is another way of saying it is capable of being persuasive, must involve a similar offender, who committed similar offences in similar circumstances. By definition such cases must also be correctly decided in accordance with the relevant and extant law at the time, and still be persuasive at present.

[70]         Over time, the courts of Nova Scotia have recognized that the sentences for such offences were simply too low.

[71]         For example, with all due respect, an unreliable precedent can be found in the reasons of the court in R v Langille, [1987] NSJ No. 87 (CA). There the 14 ½-year-old adopted daughter, testified that she was assaulted “lots of times” and gave details of eight separate incidents – one of vaginal intercourse; one of oral intercourse; and three acts of anal intercourse. “The three remaining incidents involved activity such as Langille placing her hand on his penis and fondling and otherwise sexually assaulting her.”

[72]         The trial judge accepted Mr. Langille’s guilty plea but did not enter a conviction until he had heard the evidence adduced by both the Crown and Mr. Langille. He sentenced him to 30 months imprisonment.

[73]         The sentence was upheld, and the Court of Appeal stated:

“We appreciate that he is 29 years of age and without any prior criminal record. Crimes of this nature however are unfortunately not uncommon in our society today and strong sentences are called for to deter adults from sexually assaulting and abusing helpless children who are under their care, custody and control.”

 

[74]         Eight years later in R v Ken, [1995] NSJ No. 300, Justice Walter Goodfellow sentenced the offender to 5 years in custody. He was convicted of two counts of sexual assault upon his niece who was between 8 and 11 years of age and had been entrusted to his care as a babysitter and to reside with him for periods of time when there was overcrowding in her otherwise available accommodation. The accused had no meaningful criminal record.

[75]         Justice Goodfellow stated therein:

“These offences took place over a period of approximately 2 ½ years when the victim was between 8 and 11 years of age and resulted on [sic] occasional pressure on the child for oral intercourse and repeated frequent acts of sexual intercourse, for some periods of time on an almost nightly basis.

 

…

 

Offender’s counsel relied specifically on two cases:   R v Dean (1989) 95 NSR (2d) 310. In this case the father was convicted of a count of sexual assault and account of gross indecency towards his daughter who was between the ages of 9 and 14. The evidence disclosed touching for sexual purposes of the child, rubbing his penis against the child, forcing the child to touch his penis and self masturbation in front of her. The sentence of the court was 18 months in the first count and six months on the second count concurrent. It is noted that both the Defence and the Crown recommended a sentence of less than two years imprisonment. Chief Justice Glube expressed her concern at page 311:

 

‘… May I say at the outset when I came into this sentencing, I had read some of the cases. I have some frustration with what I consider to be some of the lower end of the sentences that are involved, and it seems to be that it is getting to be the time when one has to say, the sexual intercourse itself, mean the difference between a federal penitentiary and not a federal penitentiary, and I am beginning to feel that that is not the criteria for when it should receive a federal sentence. But I do have the submissions of both counsel and both counsel at put before me that it should not be a federal term. That of course does not necessarily inhibit the court on what it is going to do.’”

 

[76]         Justice Goodfellow added:

“In my view, given the repeated direction of our Court of Appeal that if the situation in Dean came before the court today, there would be a strong likelihood the sentence would be two years or more of imprisonment.”

 

[77]         He next references Langille, which I cited above, and referred to it as follows:

“The decision was almost a decade ago, and I am of the view that the Court of Appeal has since expressed in much stronger terms the need to express society’s abhorrence of abuse of children and the need for this to be reflected to a greater degree in the element of general deterrence.”

 

[78]         Friesen resoundingly tells us that it is an error in principle to not adequately appreciate and factor into such sentencings the gravity (wrongfulness) and harmfulness of sexual offences to children. However, rarely is this factor so clearly addressed and articulated in pre-Friesen jurisprudence.

[79]         Friesen nevertheless tells us to be sceptical of earlier sentencing cases if they do not expressly reference a deepened understanding of the gravity and harmfulness of sexual offences against children. Generally, the Friesen court expressly directs us to adopt their conclusion- that in the past courts generally have failed to give these factors sufficient weight, resulting in sentences that were not sufficiently deterrent.

[80]         As Friesen is binding on us, I repeat the following paragraph:

111 We thus wish to express our concern about sentencing ranges based on precedents that appear to restrict sentencing judges' discretion, for example, by imposing a cap of three to five years on sentences that can only be exceeded in exceptional circumstances. For instance, the British Columbia Court of Appeal has set a range for sexual interference of one to three years and has suggested that only in "rare circumstances" would a sentence above three years be justified (R. v. Williams, 2019 BCCA 295, at para. 71 (CanLII)). Similarly, the Newfoundland Court of Appeal has held that the range for sexual assault of a child involving both "intercourse" and abuse of a position of trust is three to five years and that "special circumstances" are required to depart from this range (R. v. Vokey, 2000 NFCA 14, 186 Nfld. & P.E.I.R. 1, at para. 19).

 

[My bolding added]

 

[81]         In Friesen, the trial judge imposed a period of 6 ½ years imprisonment which was reduced by the Court of Appeal to 4 ½ years imprisonment- the unanimous Supreme Court confirmed the sentence of 6 ½ years imprisonment.

[82]         The Friesen case is distinguishable from the case at Bar – nevertheless the tenor of its words ring loudly in the trial courts of Canada.[5]

[83]         On greater reflection, I conclude that the court in Friesen intended that sentencing courts “hit the reset button”, and that many earlier “precedents” are likely to dissipate like sandcastles on the shore when the tide comes in.

[84]         Let me then next consider, what then is the modern reliable range of sentences in relation to similar offences committed in similar circumstances, such as those committed by a similar offender, Mr. M?

[85]         Mr. M cited:

R v GJK, 2020 MBQB 130 – the offences occurred over the period of one year when the offender was employed as a stay-at-home childcare worker while the victim was 7 to 8 years of age. There were three instances which involved the victim being sexually touched including one instance of fellatio. In conclusion, Justice Dewar sentence the convicted accused to 56 months imprisonment, while noting: “without factoring the prior criminal record, an appropriate starting point given this kind of abuse would be 4 1/3 years – 52 months.” – This case is distinguishable.

 

R v KM, 2020 NSSC 278 – 15-year-old complainant was unknown to KM, who was a 21-year-old offender with a lengthy adult and youth criminal record. He planned the sexual assault involving non-consensual unprotected sexual intercourse and also threatened her and committed degrading acts of masturbation and ejaculation. After conviction he was sentenced to 5 years’ imprisonment-This case is distinguishable.

 

R v JS, 2006 NSSC 163- a 62-year-old offender with no prior criminal record was sentenced after trial to 4 ½ years custody (the Crown had requested 5 years) for up offences upon his stepdaughter who had lived with him since he was two years of age – the sexual assaults included acts of touching, fellatio, digital penetration which started when she was four years of age, and escalated to acts of intercourse when she was about nine years of age and continued until she was nearly 13. The sentencing judge found that his commission of these offences were devastating to her life and likely to impair much of her adult life.  With all due respect, although the trial judge may have believed themselves bound by the five-year recommendation by the Crown, this decision is one which the Friesen court would consider did not adequately reflect the gravity of these offences, nor an adequate consideration of the harmfulness of such violence against children.[6]

 

R v SRL, 2013 NSSC 57 –the 39 year- old offender, with no criminal record, was a stepfather to the complainant and pled guilty to one count of sexual assault over the period from 2005 to 2011. When she was 12 years-old he began having a sexual interest in her which began with touching and eventually progressed to masturbation, oral sex, sexual intercourse, and to anal sex. Initially, it was a couple of times per month which progress to several times each week. He became so frequent that the complainant thought of the abuse “as a relationship” there were at least 100 incidents. The Crown argued for a sentence of 6 to 8 years imprisonment whereas SRL argued for 2 to 4 ½ years imprisonment. Justice Leblanc imposed 6.5 years imprisonment-This case is sufficiently similar to be considered for the pre-Friesen range.

 

R v MNP 2015 NSSC 158 – I conclude that this decision is not a useful precedent as the facts are distinguishable and the Crown and Defence made a joint recommendation to the court (5 years) with respect to the sentence and to the offender being designated a long-term offender.

 

R v AFG, 2017 NSSC 66 – the Crown recommended a sentence of 5 to 7 years imprisonment; whereas the defendant argued the sentencing range Is between 2 and 3 years’ imprisonment. The sentencing judge on a guilty plea imposed 4 years imprisonment but noted “but for the guilty plea, a sentence in the range of 5 to 7 years as requested by the Crown would be appropriate”. The offences occurred between July 31, 2013, and January 1, 2014. The victim was present as a stepdaughter in AFG’S home. AFG and the complainant who was around the age of 16 years, engaged in mutual oral sex, manual stimulation, sexual touching, and unprotected vaginal intercourse on multiple occasions… estimated on a weekly basis- this case is sufficiently similar to be considered for the pre-Friesen range.

 

R v GHE, 2011 NSSC 281-in that case an offender was sentenced in relation to sexual interference with his two daughters. It had been 17 years before he was charged and he pled guilty, confessed to police was found to be a low risk to reoffend. The Crown was seeking a period of incarceration of 2 to 2 ½ years and six months consecutive for a total of three years. The Defence was seeking a sentence of 6 to 18 months incarceration served in the community. I find this case to be distinguishable and of no assistance.

 

The Crown cited:

 

R v Hughes, NSSC 2020 376 – between 2002 and 2013 Mr. Hughes befriended DB, eventually acting as is caregiver during holidays/summer vacations until he was 12 years old. Hughes was in his early to mid 60s and was convicted of having had repeated sexual contact with DB including oral sex and anal sex. He had stale dated convictions: for gross indecency in 1983 – 90 days imprisonment in two years probation where the victim was a 10-year-old girl; and keeping a common body house in 1994 for which he received six months imprisonment and one-year probation involving several young women who he pimped out. DB was under the age of 16 when the abuse occurred Mr. Hughes was in a position of trust. DB was especially vulnerable. The Crown sought 6 to 7 years imprisonment; the Defence sought 3 years probation. The Crown cited only Friesen, and particularly paragraph 114. The court sentenced him to 6 years in custody.[7]

 

R v McNutt, 2020 NSSC 219 – on a plea of guilty this teacher spared his student victims from participating in what would likely have been a very long and complex trial. The sentencing judge stated: “the facts of this case are a catalogue of depraved predation. Michael McNutt was a sexual predator and pedophile.” He had a prior conviction in 1994 for sexually assaulting a 15-year-old boy in 1987. What is noteworthy is that for offences where Mr. McNutt performed oral sex and/or engaged in masturbation with a male student on multiple occasions the sentencing judge held 6-7 years was an appropriate sentence. Ultimately, he was sentenced to a 15-year sentence in total. Although distinguishable, again we see for a single complainant and abuse of trust and authority, multiple sexual assaults on a teenaged victim in the range of 6 to 7 years sentence.  

 

R v Galatas, 2020 MBCA 108 – convictions were entered from multiple sexual offences against two vulnerable female children were 13 and 14 years of age. The 62-year-old paid the victims that have sex with him in his home and to fellate him in his vehicle. He also directed them to have sex with another man in his home and filmed and took photographs of his sexual offences. He was sentenced to 16.5 years custody. The Court of Appeal was not satisfied that the sentence imposed was demonstrably unfit as he argued it was in totality “harsh and crushing” – there are some differences and some similarities, but again the tenor is that for a single vulnerable complainant, with child pornography an 8-year sentence is in the range.

 

[86]         I have not strayed into cases from other provinces largely because I find that unnecessary and precarious, because each jurisdiction may have its own sentencing regime including starting points and ranges of sentence, and I am not well situated to assess whether they are Friesen compliant.  

[87]         Moreover, there is pre-Friesen guidance from our Court of Appeal in R v EMW, 2011 NSCA 87, and from the Supreme Court of Canada in Friesen.

[88]         In EMW, Justice Fichaud stated:

30 Moving downward from the high end of the range in the cases, one sees incarceration sometimes more and sometimes less than two years, depending on the severity of the circumstances, for sexual assaults on children without intercourse:

(a)Six years global for sexual offences, including digital penetration and attempted but unsuccessful intercourse with the offender's stepdaughter, committed over time while the victim was 10 to 14 years old [R. v. J.B.C., 2010 NSSC 28]. The Court (para. 24) noted that, under the caselaw, for a crime of this nature the offender's prior clear criminal record "is not accorded undue significance".

 

(b)Five years for various sexual assaults including digital penetration, not involving intercourse, over a period of years on the offender's stepdaughter. D.B.S.

 

(c)Two sentences of three years each (counts 1 and 5) for indecent assault and gross indecency without intercourse against a child to whom the offender had a parental relationship. He was given additional sentences for other offences. The court (para. 17) adopted the statement of Justice Bateman in R. v. Weaver, [1993] N.S.J. No. 91 that a clean criminal record "does not relieve the requirement of a lengthy prison term for sexual offence against children". R. v. R.H., [2005] N.S.J. No. 212 (S.C.).

 

(d)Three years for one incident of sexual assault without intercourse on offender's four year old daughter. R. v. E.E.C., 2005 NSSC 3.

 

 

(e)Three years for indecent assault without intercourse with the offender's daughter over a period of three years when she was 8 to 11 [R. v. I. (Part 2), [1996] N.S.J. No. 153 (S.C.)]. The offender had no criminal record and was unlikely to reoffend.

 

(f)Sentences of thirty months and twelve months for two counts of sexual and indecent assault on the offender's two adopted sons. R. v. A.P.S., [1999] N.S.J. No. 242 (S.C.).

 

(g)Two and one half years each (concurrent) for two counts of sexual assault and sexual touching, including attempted but unsuccessful intercourse, of the offender's 15 to 18 year old stepdaughter. R. v. N.J.B., [2003] N.S.J. No. 225 (S.C.).

(h)A larger global sentence (with remand credit) that included twenty eight months each (concurrent) for two offences of sexual touching and invitation to sexual touching over a period of time of an 11 to 14 year old girl who was unrelated to the offender. D.W.B.

 

…

 

(i)Two years exclusive of remand time plus three years probation for a number of incidents of sexual assault, without intercourse, over time on the offender's under aged daughter. The sentence was further to a joint recommendation after a guilty plea. The judge said that, if credit for remand had been considered, the sentence before credit would have been two and one half years (para. 38). R. v. H.C.D., 2008 NSSC 246. The judge said:

 

40.The joint recommendation, in terms of denunciation and deterrence, is within the range for offences of this kind. It could have easily been much higher; it is unlikely it would have been less than two years as opposed to more than two and a half years.

 

(j)Four years and five years on several counts of sexual assault that included intercourse with his older daughter, plus eighteen months for sexual touching without intercourse of his 9 to 12 year old younger daughter. G.O.H. The Court of Appeal said (para. 10):

 

It is impossible to speak of these crimes without using pejorative adjectives. This Court, and others, has repeatedly emphasized that sexual abuse of near helpless children (which is the case when the abuse of each daughter began) by adults upon whom they should be able to rely for protection, should incur sentences which may deter not only the perpetrator but others who may be so inclined. This proposition is exacerbated when the perpetrator, as here, is a parent, in a position of trust. Society's revulsion of such conduct must be demonstrated. The fact that the appellant is a first offender, at least in respect to the older daughter and may not need specific deterrence is not to be granted undue significance in crimes of this nature. General deterrence must be emphasized.

 

(k)Six months incarceration plus two years probation for several incidents of sexual touching of offender's 9 to 11 year old granddaughter. The Court of Appeal said the sentence was not unfit under the appellate standard of review. R. v. D.N.M., [1992] N.S.J. No. 356 (C.A.).

 

(l)Four months plus one year probation for two counts of fondling the offender's daughter, aged 11 to 13. The offender was remorseful and accepting of treatment to overcome his psychological problem. R. v. E.(E.B.), [1988] N.S.J. No. 425 (C.A.).

 

(m)Ten months by the sentencing judge, reduced to 90 days by the Court of Appeal for several incidents of vaginal touching the offender's 9 year old stepdaughter. The victim had not suffered psychological effects. The offender pleaded guilty and accepted responsibility. There was evidence that rehabilitation would have a positive effect. R. v. R.H.S., [1993] N.S.J. No. 489 (C.A.).

 

(n)Three months incarceration plus two years probation for sexual touching of offender's 12 year old granddaughter. The offender was remorseful, and the psychologist said he was "on the right track" to rehabilitation. R. v. W.M.D., [1992] N.S.J. No. 161 (C.A.).

 

(o)Three years suspended sentence with probation for repeated sexual touching of offender's 14 year old niece. Offender was gentle and well intentioned but feeble-minded, childlike and psychologically ill. He was remorseful and willing to secure treatment. R. v. R.T.M., [1996] N.S.J. No. 218 (C.A.).

 

[89]         Let me then briefly restate range of sentence comments from Friesen:

113      Much like the offence of impaired driving causing death, sexual offences against children can cover a wide variety of circumstances (see Lacasse, at para. 66). Appellate guidance should make clear that sentencing judges can respond to this reality by imposing sentences that reflect increases in the gravity of the offence and the degree of responsibility of the offender. In M. (C.A.), for instance, this Court upheld the sentencing judge's determination that the objectives of deterrence, denunciation, and the protection of society required a 25-year global sentence for an offender who committed several sexual offences against multiple children (see para. 94). Likewise, in M. (L.), this Court upheld a 15-year global sentence for multiple sexual offences against a single child victim as necessary to advance these same sentencing objectives (see para. 30). We would also commend the decisions of the Ontario Court of Appeal in D. (D.), Woodward, and S. (J.) as examples of appropriate appellate guidance, with the caution that the 2015 statutory amendments were not yet in effect at the time of the offences in these cases.

 

114      D. (D.), Woodward, S. (J.), and this Court's own decisions in M. (C.A.) and M. (L.). make clear that imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences. Parliament's statutory amendments have strengthened that message. It is not the role of this Court to establish a range or to outline in which circumstances such substantial sentences should be imposed. Nor would it be appropriate for any court to set out binding or inflexible quantitative guidance — as Moldaver J.A. wrote in D. (D.), "judges must retain the flexibility needed to do justice in individual cases" and to individualize the sentence to the offender who is before them (at para. 33). Nonetheless, it is incumbent on us to provide an overall message that is clear (D. (D.), at paras. 34 and 45). That message is 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 or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward, and M. (L.). In addition, as this Court recognized in M. (L.), maximum sentences should not be reserved for the "abstract case of the worst crime committed in the worst circumstances" (para. 22). Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20).

 

[My bolding added]

 

[90]         As the Friesen court prominently cited the Ontario Court of Appeal decision in R v D.D. 2002 [OJ] No. 1061 (CA), it is particularly instructive to reference Justice Moldaver’s reasons therein:

“44      To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. (See, for example, R. v. M. (C.A.), [1996] 1 S.C.R. 500 (S.C.C.) in which the Supreme Court restored the 25-year sentence imposed at trial and R. v. W. (L.K.) (1999), 138 C.C.C. (3d) 449 (Ont. C.A.)in which this court upheld a sentence of 18 and a half years imposed at trial.)

 

 

[91]         Although it can be difficult to state so with precision, as I look across the pre-Friesen jurisprudence[8] as adjusted herein to reflect the “Friesen effect” and the post-Friesen jurisprudence[9] and consider the words of the court in Friesen itself at para. 114[10] for similar offences committed by similar offenders in similar circumstances, I am well satisfied that the ranges for these sentences are as follows:[11]

1.     sexual assault/sexual interference/sexual exploitation: 

In relation to one vulnerable victim/stepdaughter while aged 12-17 years, living in the home with the offender- vaginal intercourse without a condom in which he would ejaculate inside her vagina, anal (involving the insertion by him of sex toys) and oral sex which all happened “for years”.

              The range is from 7-12 years imprisonment.[12]

2.     s. 163.1(2) – make, print/publish/have in his possession for the purpose of distribution of sale child pornography (April 2013 – December 2017)

[92]         The law is clear that generally this criminal misconduct justifies a consecutive sentence –R v JS, 2018 ONCA 675 - as approved by Friesen.

[93]         While the court in R v PM, 2012 ONCA 162 confirmed 1-year consecutive imprisonment for child pornography, where the offender had a collection of over 1800 images of child pornography, some depicting his daughter, I note that the maximum penalty at the time of these offences was 10 years until on July 17, 2015, when it became 14 years imprisonment, and that thereafter the offences continued.

[94]         In my opinion, because there is a paucity of post-Friesen jurisprudence to date, it is prudent to exercise restraint in establishing ranges for child pornography offences at this time. I am of the view that the range applicable to this case, which in my opinion is also affected by the Friesen effect, should be seen as between 2 -4 years’ imprisonment consecutively served.[13]

The 6 Friesen factors

 

[95]         Let me next examine the six factors the Friesen court considered “significant factors to determine a fit sentence” –  paras. 121-154.

a)    likelihood to re-offend

[96]         There is no evidence specifically in relation to this factor. However, I am satisfied that Mr. M’s sexual preferences include female children between the ages of 12 and 18. That group is at risk from Mr. M, based on the circumstances of his present convictions. A sex offender assessment will reveal greater detail. I am satisfied that without interventions, he remains at risk to recommit these offences (including possessing and making child pornography);

b)    abuse of trust or authority

“Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offences. As Saunders JA reasoned in DRW., The focus in such cases should be on ‘the extent to which [the] relationship [of trust] was violated’ (para. 41 - Friesen).”

[97]         “A” had just arrived in Canada to be with her mother, her new step father, and her step brother. She was vulnerable. She believed her mother to be dependent upon Mr. M. Within one month the sexual abuse began. From the start, Mr. M treated his stepdaughter as a sexual commodity. He groomed her and manipulated her into thinking that there was a relationship between them and that they might even get married. He threatened to show her boyfriend sexually explicit photographs of her if she didn’t continue with the sexual misconduct of Mr. M.

[98]         I will not go on, but to say that the abuse of trust and authority is egregious.

c)     duration and frequency

“The duration and frequency of sexual violence is a further important factor in sentencing. The frequency and duration can significantly increase the harm to the victim. The immediate harm the victim experiences during the assault as multiplied by the number of assaults” (para. 131 - Friesen)

[99]         Mr. M’s sexual misconduct was persistently ongoing for five years.

d)    age of the victim

“The power imbalance between children and adults is even more pronounced for younger children, whose ‘dependency is usually total’ and who are ‘often helpless without protection and care of their parents’… Their personality and ability to recover from harm is still developing… Children who are victimized at a younger age must endure the consequential harm of sexual violence for a longer period of time than persons victimized later in life”. (para. 134 - Friesen)

[100]    “A” was between 12 and 17 years of age.

[101]    “A” was very much in this category in the sense of her vulnerability-being new to Canada, new to the marriage of her mother and Mr. M, and new to the community in which they lived. She had no one in Canada, except her mother, MM and Mr. M.

[102]    This is also a significant aggravating factor, given that the offences began almost immediately upon her arrival.

e) degree of physical interference

“We acknowledge that the degree of physical interference is a recognized aggravating factor… The degree of physical interference also takes account of how specific types of physical act may increase the risk of harm. For instance, penile penetration, particularly when unprotected, can be an aggravating factor because it can create a risk of disease and pregnancy… Penetration, whether penile, digital, or with an object, may also cause physical pain and physical injuries to the victim… Specifically, we would strongly caution courts again to downgrading the wrongfulness of the offences or the harm to the victim with a sexually violent conduct does not involve penetration, fellatio, or cunnilingus, but instead touching or masturbation. There is no basis to assume, as some courts appear to have done, that sexual touching without penetration can be ‘relatively benign’… Some decisions also appear to justify a lower sentence by labelling the conduct is merely sexual touching without any analysis of the harm to the victim… Implicit in these decisions is the belief that conduct that is unfortunately referred to as ‘fondling’… is inherently less harmful than other forms of sexual violence… This is a myth that must be rejected….” (paras 138-144 - Friesen)

“… There is no type of hierarchy of physical act for the purposes of determining the degree of physical interference… Physical acts such as digital penetration and fellatio can be just as serious a violation of the victims’ bodily integrity as penile penetration… It is an error to assume that an assault that involves touching is inherently less physically intrusive than an assault that involves fellatio, cunnilingus, or penetration.” (para. 146 - Friesen)

[103]    The degree of physical interference here was substantial – there was always unprotected vaginal intercourse, because he had a vasectomy.

[104]    “At times he would attempt to put his penis in her anus. She didn’t like it and it hurt. Sometimes he would insert a dildo in her anus instead. She described the dildos that he used on her”… [at one point]  She told him she wouldn’t tell anyone as long as she didn’t have to swallow his ejaculate, and he agreed.” (per ASF).

[105]    I am satisfied that all manner of sexual activity occurred between Mr. M and “A”. He did not restrain his depravity.[14]

f) the victim participation

“Some courts have, while acknowledging that a victim’s participation is not a mitigating factor, nevertheless treated it as relevant to determining a fit sentence… This is an error of law… The participation of the victim may coincide with the absence of certain aggravating factors, such as additional violence or unconsciousness. To be clear, the absence of an aggravating factor is not a mitigating factor… In no case should the victim’s participation be considered a mitigating factor. Where a breach of trust or grooming led to the participation, that should properly be seen as an aggravating factor…” (paras. 150-154 - Friesen)

[106]    “A” did participate in the commission of the offences. She is not responsible for that. She was effectively coerced by Mr. M’s manipulation and breach of trust which led to her participation. That fact is an aggravating factor on its own.

[107]    I have previously touched on other of the aggravating and mitigating factors, therefore I will not revisit them here.

[108]    The next question therefore is where does Mr. M and his offences sit on the range of sentences?

 

Adjusting the range of sentence according to the aggravating and mitigating factors, so as to identify an appropriate sentence

 

[109]    Without expressly outlining them, I am certainly keeping in mind all the common law and statutory principles of sentencing and sentencing provisions which are contained between sections 718-726.1 of the Criminal Code. To the extent that there were changes effected in 2015 which is in the middle of the time interval of the commission of offences here, I will apply the law applicable at the time of the commission of the offences.

[110]    Although Mr. M has no criminal record, that is not a significant mitigating factor here.

[111]    I have also concluded that his age and health status are not significant mitigating factors here.

[112]    A significant mitigating factor which I have outlined earlier, is his guilty plea.

[113]    I have canvassed the aggravating factors otherwise herein; and they are numerous, and material to the identification of a proper sentence.

[114]    They include:

1.     He would “often play pornography on his HP laptop while he was penetrating her”;

2.     When her mother discovered what was going on, Mr. M threatened her mother, and “A” felt she “could never say anything about it because she didn’t want to ruin her mother’s life”;

3.     He continued his sexual assaults on “A” thereafter;

4.     “He would provide her and her underaged friends with alcohol… He gave her money to buy marijuana.”;

5.     He controlled her social life and held out marriage to her.

[115]     The evidence presented, including the expressed victim impact as well as inferences reasonably drawn from the circumstances, confidently allow the conclusion that Mr. M’s abuse, breach of trust and manipulation of “A” has had to date a devastating effect on “A”; including on the family unit which it has fractured, creating rifts between her and her mother, her and her brother (who at a young age has also been placed in an untenable position – must he  make a choice between his father, and his mother, or sister? He is also a collateral victim as he has been personally impacted by Mr. M’s offences, including requiring mental health intervention);

[116]    Mr. M’s criminal conduct has also derailed her educational and employment goals and sabotaged her teenaged years when she should have had the chance to have innocent rather than corrupt experiences and have shared growth with her peers- her victimization will continue to negatively impact her adult life. 

[117]    I agree with the Crown’s statement that: “the act of producing child pornography of the victim creates additional insecurity for the victim. She cannot know how many images the accused took of her, where they are stored, or who may have access to them.”

[118]    Moreover, in my view it is clearly an aggravating factor when the pornography is, as it is in this case, that of a child in the care or custody of a parent or someone acting in that capacity.

[119]    I conclude that a fit and proper sentence for Mr. M in relation to each these offences before I apply the totality principle is as follows:[15]

1.     s. 151 - April 11, 2013 – December 28, 2015 - 7 years’ imprisonment;

2.     s. 153 - December 27, 2015 – December 28, 2017 - 6 years’ imprisonment (to be served consecutively);

3.     s. 271 - December 28, 2017 – April 9, 2018 - 5 years’ imprisonment (to be served consecutively);

4.     s. 163.1(2) - April 11, 2013 – December 28, 2017 - 3 years’ imprisonment (to be served consecutively).

[120]    That would cumulate to 21 years in custody before I apply the totality principle.

[121]    With a last look to ensure that the aggregate sentence is not disproportionate, in relation to the overall culpability of Mr. M, I am satisfied that his total sentence on the 7 to 12 years range should be set as 9 years imprisonment, allocated as follows:

1.     s. 151- 3 years;

2.     s. 153- 3 years consecutively served;

3.     s. 271- 2 years consecutively served;

4.     s. 163.1 (2)- 1 year consecutively served[16] - which total to 9 years imprisonment.[17]

 

The pre-credit sentence of imprisonment

 

Pre-sentence remand time and house arrest release conditions as a credit and a mitigating factors

 

[122]    From those sentences Mr. M is entitled to pre-sentence credits for his time in custody (he was arrested April 10, 2018 and released on strict house arrest conditions on April 19, 2018. He was arrested again for breach of house arrest on May 16, 2018 -and remained in custody until March 25, 2020. That day, largely in response to the Covid 19 pandemic and attempts by Crown counsel in conjunction with Defence counsel and courts to depopulate the prisons, he was released on house arrest until he appeared in this court and was detained from July 13 to July 30, 2021.

[123]    He has spent 686 days in remand custody to which I would apply the usual 1.5 days per each day of custody credit which rounded up gives him a 1029 days’ credit.[18]

[124]    He has been on house arrest between April 19-May 15, 2018 and March 26, 2020- July 12, 2021 ( 27 + 475 days) for a total of 502 days.

[125]    His counsel argues that he should get .5 days’ credit for every day he was on house arrest per R v Balfe, 2019 NSSC 193. In that case Justice Wright stated:

 “I have no hesitation in reaching the conclusion that the sentencing objective to be given the greatest emphasis in this case is the rehabilitation of the offender… A fit and proper sentence to be imposed upon Mr. Balfe is that advocated by Defence counsel, namely federal time of two years’ imprisonment followed by three years of probation… There remains to be considered the credit to be given to Mr. Balfe in recognition of the restrictions on his liberty while on house arrest. This issue was addressed by Justice Duncan in the sentencing of Mr. Gibbons [co-accused] and the result was the granting of a credit of ½ day for each day spent under house arrest.

 

Both the Crown and Defence counsel submit that the same formula should be applied here and calculating the credit to be given to Mr. Balfe’s pre-sentence release.”

[126]    I consider myself bound by Justice Saunders reasons from R v Knockwood, 2009 NSCA 98 at para. 33:

 

33 From these authorities I will take the present state of the law to be such that the impact of strict release conditions may be considered or "put into the mix", together with all other mitigating factors, in arriving at a fit sentence.

34 Assuming that to be so, I would conclude that the impact of the particular conditions of release upon the accused must be demonstrated in each case. That is, there must be some information before the sentencing court which would describe the substantial hardship the accused actually suffered while on release because of the conditions of that release. See for example Irvine, supra at paras. 27-30.

[127]    I have examined the documents that placed Mr. M under house arrest. I bear in mind that according to the PSR he is retired from the military since 2018 and he has been assessed as having a permanent classification of full disability of employability. Between March 26, 2020, and July 13, 2021, he lived with his father outside of Nova Scotia. He was permitted to be out and about on the property for employment purposes, and he had some personal free time on Saturdays. There was no evidence presented that the impact of the particular conditions upon him rose to a level of substantial hardship that he actually suffered, though I infer that during this time the restrictions did materially affect his freedom to go and do things as he would otherwise have done.

[128]    Therefore, I will “put into the mix” this as a mitigating factor, especially due to the lengthy duration that he was on these conditions while under house arrest.

[129]    I conclude a 6 -month reduction in his sentence is appropriate on this basis.

 

The sentence of imprisonment that will appear on the Warrant of Committal (which will also include a s. 743.21 endorsement)

 

[130]    Therefore, a reduction of 6 months (or more precisely 180 days for his house arrest over 15.5 months) and 1029 days (pre-sentence remand credit), or 1209 days in total shall be deducted from his 9-year sentence of imprisonment.

 

 

                                                          Rosinski, J.

CANADA                                                                                                      CRH#491394

PROVINCE OF NOVA SCOTIA

HALIFAX REGIONAL MUNICIPALITY

 

 

 

 

 

 

IN THE SUPREME COURT OF NOVA SCOTIA

 

 

HER MAJESTY THE QUEEN

 

against

 

SJM

 

 

 

 

Pursuant to the provisions of Section 655 of the Criminal Code, the Crown is hereby alleging and the accused, SM, is hereby admitting the following facts for the purpose of dispensing with proof thereof:

 

AGREED STATEMENT OF FACTS

 

 

1.      AZ was born in 1999, [outside of Canada]. Her mother is IM. IM moved to Canada in 2004 and married SM. AZ remained [outside of Canada] and lived with her father. On April 13, 2013, when AZ was 13 years old, IM brought her daughter to Canada to live with her and her new husband. They lived in [], NS. IM and SM had a son, MM, who was born in 2010. IM and SM eventually separated in 2017. After their separation, AZ continued to spend time at SM’s home. 

2.      On Sunday, April 8, 2018, AZ disclosed to her mother that the accused had been sexually abusing her for years. IM and AZ [contacted] the RCMP to file an initial report. 

3.      On April 9 and April 26, 2018, AZ provided video statements to D/Cst. Leonard MacDonald. She disclosed that:

a.       When she first moved to Canada from [another country] in April 2013, AZ had her own bedroom at the home. SM said that he had a back injury and wanted to try out her bed, so in the first weeks after her arrival he slept in her bed with her. AZ would wake up to him touching her buttocks. She didn’t know what to do, she was in shock.

b.      In May of 2013, she recalled an incident where she and SM and MM were watching a movie in SM’s bed. Her mother was not home. She had fallen asleep and when she woke up, she felt him laying behind her with his erect penis between her legs. Her brother was no longer in the bed. She didn’t move at first but after a few minutes passed she moved away. She said, “what the fuck?” and SM asked her what she was talking about. He got up out of the bed. He was not wearing underwear and she could see his erect penis. That was how everything started.

c.       At around the same time, she recalled another incident where he took her to the basement. He put her on a blow-up mattress and took her underwear off and put his mouth on her vagina. He put his fingers into her vagina. 

d.      In the fall of her first year in Canada, they went as a family to stay at a cabin near a lake. Throughout that time, SM would touch her breasts and her buttocks when her mother wasn’t aware. One evening, her mother went to bed early. She was sitting on the couch with SM and he had a laptop on his lap. They were listening to music. When he moved the laptop away, she saw that he had an erection. He put her hand on his penis and started to do things with her hand. This continued for months afterwards.

e.       In the summer of 2014, they went to visit SM’s parents in [another province]. They took the ferry and then stayed at their home for two weeks. It was at this time that she got her first period. She was supposed to sleep with her mom and SM was supposed to sleep with her brother in the other room. In the evening, SM told her mother that they should switch rooms for the night. Her mother agreed. That night he pulled down her underwear and put his penis in her vagina. He had tried before to penetrate her vagina using lots of lubrication but he hadn’t succeeded on prior occasions.

f.        He continued to have penetrative vaginal intercourse with her for years. She can’t say how many instances of sexual intercourse occurred. He never wore a condom because he had a vasectomy, but he would ejaculate inside her. This happened when her mother wasn’t around, and he would tell her little brother that they were going to do laundry. He would have sex with her in the bathroom. Sometimes, if she refused, he would just masturbate in front of her. Often he would play pornography on his HP laptop while he was penetrating her.

g.      Once she was cuddling with her little brother in his bed at bedtime. SM got into bed behind her and got under the covers. He put his penis in her vagina. Her mother walked in on them together under the covers in bed and he said, “oh, we are just cuddling.” He slowly pulled his penis out and did up his pants.

h.      In the summer of 2016, they were visiting [another province than where SM’s parents lived]. He joined her in her bed and was whispering in her ear how he was going to “fuck her so hard.” Her mother came into the room and SM immediately pulled away from her. Her mother pulled the covers off and saw his erect penis. Her mother got mad at him and at her and told her “you can go back to [their country of origin], you little whore” in [a foreign language]. 

i.        At times he would attempt to put his penis in her anus. She didn’t like it and it hurt. Sometimes he would insert a dildo in her anus instead. She described the dildos that he used on her. They included a very large one that really made her upset, a blue one with a suction cup on the bottom, a double-ended dildo that was a pale skin tone, a purple one with concentric circles, and a metallic one that had a wheel with sharp things on the handle.

j.        When she got a boyfriend at age 15, he wouldn’t let her go out with her friends or have a relationship. He was elated when she broke up with her boyfriend. After that, she kept any relationships secret. There were times when she thought she was in love with SM, and having a relationship with anyone else felt like cheating on him.

k.      From time to time she would threaten to kill herself. When that happened, he would say, “go ahead, do it.” He told her he wanted to marry her and that he had started picking out a ring. She told him she wouldn’t tell anyone as long as she didn’t have to swallow his ejaculate, and he agreed.

l.        He took nude photos of her from early on. He worked as an IT specialist with the dockyard. He had a secret app on his phone called Vault to keep pictures of her without anyone else being able to access them. He threatened her that he would tell her boyfriend everything if she didn’t send him nude photos. When he took nude photos of her she would demand that he delete them immediately. When he travelled, they would have video chats. He would ask her to show him her breasts or other parts of her body. She believes he has taken screen shots from those videos.

m.    He would provide her and her underage friends with alcohol. Her mother was aware of that. He would encourage her to drink more and more. When he gave her alcohol, he would say, “we’re going to get you all fucked up tonight, really drunk so we can fuck.” She preferred getting drunk so that she could pass out and he wouldn’t try anything if she was passed out. The next morning he would be angry with her because they hadn’t had sex. She started smoking marijuana because she didn’t know how to deal with it. She just wanted to feel numb. He would give her money to buy marijuana.

n.      Throughout the years she could never say anything about it because she didn’t want to ruin her mother’s life. Her mother had a hard life in [their country of origin] and now that she was in Canada she was finally happy. She felt that SM had done everything for her to be able to come [from her country of origin] to join her mother, and she owed him her life here, too. She thought he would lose his job, that he would lose everything and he was the very reason she was in Canada. She held everything in. She thought that if she suffered, no one else would have to. She felt scared and embarrassed, and she thought her mother would think she was a slut. She felt that it was her fault and blamed herself for going along with it.

o.      She left the home in March 2018. After she left, he told her that she was breaking her heart.

4.      AZ provided police with a copy of a photograph of her wearing underwear, bent over the garbage cans in the kitchen that SM had texted to her. She also provided a text message exchange with SM where he wrote: “I really hope you are having good sex. Just not as good as mine though.. lol. Hehehehe.” He also sent her a message that said: “Why bother if I can’t compete now. You are getting it better now and I am just an average fuck now. That’s what sux.” AZ responded: “I’m sorry idk what you want me to do.” He responded “Is it even worth doing it with me anymore. Be honest.”

5.      IM also provided a statement to police on April 9, 2018. She confirmed the incident in [another province] in 2015 or 2016, when SM told her he would sleep with AZ.

6.      She acknowledged that some of the sex toys at the home had been hers.

7.      Police officers executed a warrant on April 10, 2018. In the bedroom, a picture of AZ was on the floor. Officers seized the following electronics from the home:

a.       iPhone

b.      iPhone

c.       Toshiba external hard drive

d.      2 CDs

e.       White iPad in a pink case

f.        Surface laptop

g.      Portable hard drive “My passport”

h.      Silver iPad

i.        Desktop tower

j.        CD

k.      Sony Video cassette

l.        DVD disc

m.    Desktop tower

n.      Thumbdrive

o.      HP laptop

p.      LG cellphone

q.      Samsung cellphone

r.        LG cellphone

s.       Micro SD card

t.        ZTE cellphone

u.      LG cellphone

v.      Blackberry

w.    Sony Ericsson phone

8.      From the master bedroom, they also seized photos of AZ that were found on the bed. From a box in the closet they seized the following sex toys:

a.       Pink vibrator egg

b.      Oversized dildo

c.       Blue dildo with a suction cup at the base

d.      Silver dildo with cowboy spurs at the base

e.       Purple dildo with four concentric spheres

9.      Forensic analysis of the electronic devices was attempted. Some were locked and not able to be examined. However, four devices yielded 585 deleted images that were categorized by police as child pornography. Many appear to be of AZ, although based on the cropping of some photographs that cannot be confirmed for many of the images. From the HP laptop that was found in the master bedroom, they were able to retrieve photographs of AZ that had been deleted from a folder labelled: “M\desktop\SMs LG Backup March 2016.” From the LG cellphone retrieved from the nightstand in the master bedroom, they also found deleted images of AZ in a folder labelled: “Com.calculator.vault\Files\Locker1762.” Another LG cellphone that was found in the nightstand in the master bedroom contained deleted images of AZ, and yet another that was found in the garbage in the master bedroom.

10.  Many images retrieved show different sequences of photographs taken while AZ was naked or wearing only undergarments. Some appear to have been taken by AZ herself in the bathroom of the home. Others are taken by someone else as AZ is shown asleep in a bed, sometimes naked and sometimes partially clothed, or asleep on a couch with her pants and underwear pulled down. The photos start with wide angles showing all of AZ’s body and then zoom in on her breasts and genitals. There is a series of photographs that start with a picture of SM and AZ from the chest up, smiling. AZ is wearing a distinctive brown sweater. The next photos in the series zoom in on AZ’s chest and the sweater she is wearing is unzipped to show her breast. Some of the photographs obtained by the police appear to be screenshots of videos.

 

 

 

DATED at Halifax, Nova Scotia, this ___ day of December, 2020.

 

 

 

 

_________________________                                              _________________________         

Alicia Kennedy                                                                       Jennifer Crewe

Senior Crown Attorney                                                          Crown Attorney         

 

 

 

 

_________________________                                              _________________________         

Kathryn Piché                                                                         SM                             

Counsel for SM