Supreme Court

SUPREME COURT OF Nova Scotia

Citation: R. v. W.C.C., 2023 NSSC 85

Date: 20230306

Docket: Hfx. No. 509048

Registry: Halifax

Between:

His Majesty the King

 

v.

 

W. C. C.

 

Judge:	The Honourable Justice John A. Keith
Heard:	February 23, 2023, in Halifax, Nova Scotia
Trial:	November 1 – 4, 2022
Counsel:	Tiffany Thorne and Will Mathers, for the Provincial Crown Drew Rogers and Mark Holden, for the Defendant

 

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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) 2 or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

 

Order restricting publication — victims and witnesses

 

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

 

NOTE:  In reducing to writing the oral decision rendered in this matter, editing has taken place to include omitted citations and quotes from secondary sources and to make changes to format or to grammar for readability.  No changes have been made to the substantive reasons for decision.

 

By the Court (Orally):

INTRODUCTION

[1]             By verdict rendered November 4, 2022, a jury found WCC guilty of:

1.                 sexually assaulting CC, contrary to section 271 of the Criminal Code;

2.                 using his mouth to interfere with CC, a person under the age of 16, for a sexual purpose contrary to section 151 of the Criminal Code.  This offence is sometimes referred to as “Sexual Interference”; and

3.                 inviting, counselling, or inciting CC, a person under the age of 16, for a sexual purpose to directly touch WCC’s penis contrary to section 152 of the Criminal Code.  This offence is sometimes referred to as “Invitation to Sexual Touching”.

[2]             Sentencing was originally scheduled for February 8, 2023 but had to be adjourned to February 23, 2023.

[3]             The parties’ positions on sentencing overlap and their views of the applicable principles are not dramatically different.  I note that:

1.                 Both parties acknowledge that the charge of sexual assault should be conditionally stayed pursuant to the rule against multiple convictions for the same delict (R. v Kineapple, [1975] 1 SCR 729).  For the purposes of sentencing, therefore, the task before me today is to determine a fit, proper, and just sentence for WCC’s crimes of sexual interference and invitation to sexual touching;

2.                 Both parties agree that sexual offences against children are reprehensible, highly blameworthy, violate fundamental values and basic societal codes common to humanity which seek to protect children as among our most innocent and vulnerable;

3.                 Both parties recognize that sexual abuse of a young child is an extremely serious aggravating factor.  In R. v Friesen, 2020 SCC 9 (“Friesen”), the Supreme Court of Canada:

a.                        Reviewed the cruel and lasting harm inflicted upon sexually abused children and how that abuse radiated among those who interact with the victims (at paragraphs 50 -86);

b.                       Called upon sentencing judges to fully understand the damage caused by sexual offenders and similarly recognize that “Parliament's choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause.” (at paragraph 105);

c.                        Concluded that denunciation and deterrence are the key priorities in sentencing a sexual offender who have violated the sexual integrity of children; and that “…sexual violence against children should be punished more severely” (at paragraph 116). As such, “upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence” and “sexual offences against children should generally be punished more severely than sexual offences against adults” (at paragraph 107).   

4.                 Both parties also agree that there are important mitigating considerations in this case.  Chief among these is WCC’s history as an Indigenous child who was himself the victim of severe sexual and physical abuse.  Obviously, WCC’s tragic personal history does not excuse WCC inflicting the same wounds he suffered as a child upon other children.  However, the Supreme Court of Canada’s decisions in R v Gladue, [1999] 1 S.C.R. 688 (“Gladue”) and R v Ipeelee, 2012 SCC 13 (“Ipeelee”) loom large.  Indeed, in Friesen, the Supreme Court of Canada expressly recognized that:

…where the person before the court is Indigenous, courts must apply the principles from R. v. Gladue, [1999] 1 S.C.R. 688 (S.C.C.), and Ipeelee. The sentencing judge must apply these principles even in extremely grave cases of sexual violence against children (see Ipeelee, at paras. 84-86). The systemic and background factors that have played a role in bringing the Indigenous person before the court may have a mitigating effect on moral blameworthiness (para. 73). Similarly, a different or alternative sanction might be more effective in achieving sentencing objectives in a particular Indigenous community (para. 74).

[at paragraph 92]

[4]             That said, the parties ultimately differ on how these facts and principles should be applied in this case. The most significant dispute relates to the term of imprisonment.  The Crown seeks 4 – 6 years.  The Defence argues that 3 – 4 years is appropriate in the circumstances.  The parties also differ on the Crown’s request for a prohibition order under section 161 of the Criminal Code.

[5]             I am now required to impose a fit and proper sentence upon WCC.

CIRCUMSTANCES OF THE OFFENCE

[6]             It is necessary to outline the material facts of the crime so as to better ensure the sentence for that crime is fit and just.  However, as this was a jury trial, I do not have access to the facts which jury members debated and ultimately relied upon when reaching their  verdict.  Both the common law and section 649 of the Criminal Code recognize the sanctity of jury secrecy which, in turn, prohibits the Court from receiving information regarding jury deliberations. The underlying rationale includes a desire to protect the integrity of jury deliberations and shield the jury from outside influences (R v Pan, 2001 SCC 42).

[7]             Nevertheless, a fit and proper sentence cannot be conjured in a factual vacuum. As such, where a jury finds an accused guilty, the sentencing judge must do their best to make certain factual determinations or assumptions as to the facts which the jury used to support conviction.  (See R v Ferguson, [2008] 1 S.C.R. 96 at paragraphs 17 – 18 and section 724(2) of the Criminal Code). The sentencing judge’s factual determinations are limited to those which are necessary to impose a sentence for the particular crime committed. The sentencing judge may not embark on his own fact finding mission or make such additional factual determinations that are inconsistent with the jury’s verdict, or were implicitly rejected by the jury having regard to the verdict (R v Landry, 2016 NSCA 53 at paragraph 49).

[8]             The following factual determinations were developed with these principles in mind, and based on the evidence before the Court:

1.                 WCC was about 36 years old at the time.  CC was about 6 years old.  The 2 had just moved to Nova Scotia the year before. 

2.                 WCC was CC’s sole caregiver for most of her childhood.

3.                 WCC’s crimes date back to 2007 and involve the following 2 discrete attacks on the sexual integrity of his daughter, CC:

a.                        On the first occasion, CC got up in the middle of the night to use the bathroom and WCC was awake in the living room. WCC called CC over to him, touched CC’s vagina, put CC’s hand on his penis and used her hand to stroke his penis, and asked CC to put her mouth on his penis. CC estimated the entire incident occurred over approximately 10-15 minutes;

b.                       On the second occasion, CC again got up in the middle of the night to use the bathroom. WCC was awake in the living room watching pornography and called CC over to watch it with him. In the course of that incident, WCC touched CC’s vagina, applied pudding to her vagina, and told CC to sit on his face while he licked the pudding off of her vagina. CC then went to the bathroom. When CC came out of the bathroom, WCC called CC to him in his bedroom, put CC’s hand on his penis and used it to masturbate. WCC finished by ejaculating in CC’s face.

CIRCUMSTANCES OF THE OFFENDER

[9]             A pre-sentence report was filed by Probation Officer Henk Van Voort dated January 6, 2023.  It indicates that:

1.                 WCC was born July 5, 1971.  He is current 51 years old.  As indicated, the offences in question date back about 15 years to 2007 when WCC was about 36 years old.

2.                 W.C.C. was born in Toronto, Ontario.  His parents are deceased and his family relationships are almost completely fractured.  He has 12 siblings but maintains contact with none of them.

3.                 WCC grew up in a mess of trouble.  WCC describes his father as a drinker who was abusive to his wife (WCC’s mother).  WCC’s father was also extremely violent towards him.  WCC states that his misbehaviours as a child were met with “beatings and abuse”. 

4.                 WCC left his family home at the age of 12 and begin living on the street.  I note that WCC’s age when left home is somewhat uncertain.  The Gladue Report (summarized below) suggests that he left home when he was 14 years old.  In any event, WCC was a child when choosing (or forced) to fend for himself.

5.                 WCC says that he was subjected to years of physical and sexual abuse at the hands of his father before resigning himself to a life on the streets in place of a life of violence at home.

6.                 WCC early experiences with some of society’s more redemptive features such as sustained schooling or vocational training were fleeting at best. His most meaningful access to these sorts of “opportunities” occurred as a young adult while serving time in jail for various criminal offences.  For example, WCC left school and was living on the streets at a very early age.  He only returned to school to complete Grade 10 while serving a custodial sentence at Maplehurst Correctional Complex.

7.                 By contrast, society’s correctional institutions were a much more familiar and entrenched part of WCC’s life.  At the age of 16, WCC met a girl who was associated with a local biker gang.  He began living with the bikers.  By the time he was 24, WCC says that he moved to British Columbia and began selling weed.  Between 1998 (when he was about 17 years old) and 2003 , WCC accumulated 28 criminal convictions – and he served time for most of them.

[10]         While these details are telling, they unfortunately fail to fully capture the extent of despair in WCC’s life as an Indigenous child and young adult. A more complete account of those hardships are contained in a Gladue Report dated April 24, 2019 and written by Robin Thompson of the Mi’kmaw Legal Support Network.  The Report offers important background information as to how certain colonial and post-colonial policies generally left indigenous communities impoverished, isolated, and culturally devastated.  But as important for the present purposes, the Report connects these sort of generalized, historical observations with specific circumstances surrounding WCC’s own life, the details of which are bleak. 

[11]         Gladue Reports typically describe, in general, historical terms, the unique, intergenerational wounds inflicted upon indigenous communities.  That said, sentencing a indigenous offender (including that person’s moral culpability) is also a highly individualized and deeply personal exercise.  For sentencing purposes, Gladue Reports seek to reveal how societal forces and shortcomings create intergeneration damage and manifest themselves in the lives of an individual offender.  Thus, the Supreme Court of Canada concluded in Gladue that:

While background and systemic factors will also be of importance for a judge in sentencing a non-aboriginal offender, the judge who is called upon to sentence an aboriginal offender must give attention to the unique background and systemic factors which may have played a part in bringing the particular offender before the courts.

[at paragraph 69, emphasis added]

[12]         Similarly, in Ipeelee, the Supreme Court of Canada wrote that information regarding the broad societal impacts of certain historical patterns:

“… provide the necessary context for understanding and evaluating the case-specific information presented by counsel. Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered. In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders. Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfilling his duties under s. 718.2(e) of the Criminal Code.”

[at paragraph 60, emphasis added]

[13]         Here, Robin Thompson’s Gladue Report helpfully brings the problem down to earth.  In very concrete and compelling terms, WCC’s Gladue Report in this case:

1.                 Connects WCC’s actual experiences and suffering as an individual Indigenous person within the broader, societal and historical issues;

2.                 Reveals how an Indigenous person’s trauma can be transmitted from one generation to the next, with devastating consequences; and

3.                 Impacts the Court’s assessment of WCC’s moral culpability for the crimes in question.

[14]         I pause here to emphasize that none of this eliminates the notion of free will or erases WCC’s moral responsibility for his crimes.  Nevertheless, again, the facts around WCC’s life as an Indigenous person are important because they inform the Court’s assessment of his moral culpability in the sentencing process.  (Criminal Code, s. 718.2(e); Gladue and Ipeelee)  

[15]         WCC’s aboriginal ancestry comes from his father, who was Mi’kmaq and a member of Acadia First Nation.  The Gladue Report indicates that WCC’s father:

1.                 Was related to the couple who operated the Ideal Maternity Home - infamous for using butter boxes as coffins for newborns considered unadoptable;

2.                 Was himself beaten as a child;

3.                 Fathered 3 children at an early age:  2 boys and a girl.  WCC has no relationship with these siblings whatsoever.  That is because WCC’s father abandoned these children and moved to Ontario with WCC’s mother, who he had just met. 

[16]         WCC’s mother had 6 children before meeting WCC’s father.  These children moved to Ontario with their mother and new stepfather.  Once in Ontario, WCC’s mother and WCC’s father had 4 more children:  WCC, 2 biological brothers and a biological sister.  Eventually 10 children and 2 adults (WCC’s father and mother) were living in the same home. 

[17]         A workplace injury impeded the ability of WCC’s father to earn an income.  The strain of poverty was made worse by WCC’s father’s alcoholism.  When drunk, WCC’s father became mean and very violent.  In the end, WCC’s father helped renew the cycle of violence that plagued his own childhood by inflicting similar pain on his own children.  That is, WCC’s Indigenous father contributed to the process by which trauma is transmitted from one generation to the next.

[18]         The primary targets of the father’s abuse were WCC’s mother and WCC himself.  With respect to WCC in particular:

1.                 WCC’s father sexually abused WCC between the ages of 4 and 14. WCC’s father also molested at least 3 of WCC’s stepsisters when they were young girls but the more violent attacks were reserved for WCC;

2.                 WCC’s father also physically abused WCC.  WCC’s stepsisters recall their father throwing WCC across the room and punching WCC in the head.  WCC recalls the violence.  His memories become more detailed when the violence was particularly cruel and acute.  One time, WCC’s father ordered WCC to clean, scale and barbeque fish that WCC’s father had caught.  WCC served the fish to his father.  Upon inspection, WCC’s father concluded that WCC’s descaling efforts were inadequate.  As punishment, he picked up the burning fish and smashed it into WCC’s face.

3.                 On another occasion, WCC forgot to flush the toilet.  WCC’s father demanded to know who was responsible.  WCC did not immediate speak up.  His father called all his sons into the bathroom and had them strip naked.  WCC’s father decided to beat a confession out of them.  He whipped each son with a belt on their back and legs for as long as it took one of their sisters to count from 1 to 60.  When WCC saw what was happening, he accepted responsibility.  For his honesty, WCC was strapped to the count of 60 and then received another 50 straps for good measure.  WCC was in grade 2 at the time.

4.                 The marks left on WCC’s body as a result of this beating did not go unnoticed at school.  Children’s Aid was called but in an unimaginable reversal, the caseworker assigned to help WCC, sexually abused him instead.  WCC says that, unlike his father, the caseworker would molest WCC but not rape him.  The abuse continued for years. 

5.                 In Grade 6, WCC ran away from home to escape his father and the case worker.  He was caught by police and returned home.  For the transgression, WCC recalls being beaten by WCC’s father in front of both the police officer and his caseworker.

[19]         WCC’s father also beat WCC’s mother.  WCC attempted to intervene but his efforts failed.  Unable to either defend himself or protect his mother, WCC decided he had enough.  At around 14 years of age, he left home, left school, and soon found himself sleeping on the streets or in homeless shelters.  Any connection with his family was effectively and irreparably severed. 

[20]         When he was about 15 or 16, WCC met a woman with whom he had a child (a son).  The relationship fell apart and, this time, it was WCC who helped to renew the intergenerational cycle of violence.  WCC was twice convicted of assaulting this woman.  WCC reports that his son from this relationship eventually fell into crime and was incarcerated for violent offences – restarting the generational cycle.

[21]         WCC began selling drugs in 1997, when he was about 16 years old.  By this time, as indicated, he became associated with a biker gang.  Between the ages of about 16 – 30, his life became a blur of drugs, crime and eventual prison time.  WCC described this period as “life on the installment plan”, meaning that increasingly lengthy stints in prison for a series of criminal offences were separated only by brief periods of freedom.  While in prison, WCC also reports lengthy periods in solitary confinement for various infractions.  His existence was largely a function of endurance.

[22]         In or around 2000, WCC was 29 years old when he met another woman.  On November 2, 2001, they had a daughter:  CC.  The family moved to British Columbia but the marriage soon fell apart.  WCC attributes the initial break-up to the woman’s drug abuse and, in part, his own addiction to ecstasy.

[23]         In 2005, WCC finally wanted a “fresh start” with CC in Halifax, Nova Scotia.   CC’s mother initially resisted but eventually agreed on the condition that she be formally identified as CC’s second legal guardian.

[24]         WCC and CC moved into an apartment on Gaston Road in Dartmouth, NS.  WCC has lived there ever since. 

[25]         In 2007, WCC sexually assaulted his daughter, CC, on the 2 occasions described above.  CC was about 6 years old at the time.

[26]         WCC otherwise made significant progress to a healthier lifestyle.  He supported himself and CC through work, social assistance and the generosity of neighbours.   There were setbacks.  Although WCC avoided detection, he admits to selling drugs in the past and the process of staying sober has proven very difficult. 

[27]         He would relapse, despair and, at times, become suicidal.  However, the Gladue Report concludes that “While [WCC] has been successfully sober since July 2018, he needs assistance to not only maintain his sobriety but to address the abuse he sustained as a child. [WCC] seeks culturally appropriate treatment that will enable him to heal in a holistic way.” (at page 16) 

[28]         One final fact bears noting.  On the original date for sentencing in this matter, WCC did not appear.  Police found him in his apartment.  After years of sobriety but now facing the magnitude of what he had done to his daughter and what was to come, WCC relapsed and overdosed.  The results were serious.  WCC was hospitalized for days but, like his years growing up, he survived.

VICTIM IMPACT STATEMENTS

[29]         CC wrote a victim impact statement. In this letter, CC states, in part:

The fact that he did not try to fight me on this when he had the chance, did not try to find me or contact me when the process started speaks volumes of growth from the man I used to know.

From what I know he is a quiet man now who just keeps to himself, works for the apartment building he lives in to makes ends meet. I believe a lot of his past actions are a result of his own traumas that he needs to work through. A lot of our family has gone through what I have which I believe is the cause of generational trauma.

I do think he needs to have consequences for his actions but most of all he needs help dealing with his own past, you can’t live the life he did without some sort of mental health issues.

He is my father after all, the only parent I had so I can’t help but care for his well-being in the long run. All I can hope is that he can get the helps he needs and has a peaceful life to come.

[30]         With the consent of all parties and CC, I have also been provided with a handwritten letter she wrote her father in the past few weeks.  To protect CC’s privacy and yet preserve the integrity of the Court record, I have ordered that a copy of the letter be included in the Court file, but it is sealed.  In broad terms, it is also a wonderful example of CC’s insight and her capacity to not simply empathize with and forgive her father, but to also express an ongoing concern for his future welfare. Despite all that has happened through this proceeding and in particular in 2007 when these incidents occurred, CC’s letter speaks to the resiliency of the bond that exists between WCC and his daughter – and a shared desire for healing.

[31]         The crimes which resulted in WCC’s convictions occurred 15 years ago but they haunt CC.  She still struggles with the incomprehensible and painful mystery of why her father would have done this to his young daughter.

[32]         At the same time, again, CC expresses uncommon empathy and forgiveness. CC recognizes that the relationship with her father will take time to heal.  At the same time, she recognizes her father’s traumatic past.  She seeks to break the cycle of intergenerational trauma not only in her own life but, through treatment and care, in her father’s life as well.  CC’s concluding words are brief but poignant: “[M]ost of all, [WCC] needs help.” 

[33]         A similar capacity for understanding and empathy is contemplated  in the Supreme Court of Canada’s call for understanding the devastating intergenerational effects upon indigenous communities - not to excuse criminal conduct but as relevant context when sentencing an individual indigenous offender. (See, for example, Ipeelee at paragraphs 82 – 83)

GENERAL PRINCIPLES OF SENTENCING

[34]         A fit and proper sentence is necessarily contextualized and individualized.  Among other things, each offence involves a unique accused and unique surrounding circumstances.

[35]         The analysis is informed by section 718 of the Criminal Code which confirms that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing “just sanctions”. 

[36]         Section 718 further confirms that this purpose is achieved by imposing a “just sanction” that has one or more of the following objectives:

1.                 Denunciation (section 718(a));

2.                 Deterrence (section 718(b));

3.                 Separating offenders from society (section 718(c));

4.                 Rehabilitation (section 718(d));

5.                 Reparations to the victim or community (section 718(e)); and

6.                 Promoting accountability and the need to accept responsibility for harms done to victims and society (section 718(f)).

[37]         Sections 718.1 and 781. 2 of the Criminal Code provide principles which the Court must apply or consider to ensure the fundamental purpose and related objectives of sentencing are realized.  In particular:

1.                 Section 718.1 codifies the principle of proportionality or, more specifically, that: “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”;

2.                 Section 718.2 lists the following additional principles that must be applied to reach a just sentence.  For the purposes of this hearing, the following particular provisions are germane:

a.                        Section 718.2(a): Aggravating or mitigating circumstances relating to the offence or the offender (section 718.2(a))[1];

b.                        Section 718.2(b) of the Code speaks to parity and the notion that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” The principle of parity differs from that of proportionality, mentioned above.  Proportionality demands that a just sentence reflect the unique, particular circumstances of the offender and the offence.  By contrast, a sentencing regime that is just and fair strives for parity so that similar sentences are imposed in similar situations.  To achieve parity, the Court looks beyond the single case before it and searches for appropriate comparisons in the jurisprudence.  In doing so, the Court not only achieves parity but invokes the collective wisdom of other judges facing similar issues.  These 2 principles (proportionality and parity) do not work at cross-purposes.  On the contrary, they work in tandem towards a just and proportionate sentence.  Thus, in Friesen, the Supreme Court of Canada wrote: “Parity is an expression of proportionality. A consistent application of proportionality will lead to parity. Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality” (at paragraph 32).

[38]         As indicated, in cases involving sexual abuse of children, the Supreme Court of Canada has confirmed that “Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. Our society is committed to protecting children and ensuring their rights and interests are respected…..Protecting children from becoming victims of sexual offences is thus vital in a free and democratic society.” (Friesen, at paragraph 42)

[39]          Friesen repeatedly emphasizes that denunciation and deterrence (sections 718(a) and (b) of the Criminal Code) are the key priorities; and it ultimately concluded that “Parliament has determined that sexual violence against children should be punished more severely” (at paragraph 116). As such, “upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence” and “sexual offences against children should generally be punished more severely than sexual offences against adults” (at paragraph 107).   In these circumstances, the Supreme Court of Canada concluded, custodial sentences in the mid-single digits or higher are “normal” (at paragraph 114).

[40]         At the same time, Friesen recognized that the intergenerational trauma suffered by Indigenous persons may manifest itself in the experiences and actions and a convicted indigenous offender and may diminish the moral culpability of an indigenous offender.  At paragraph 92 of Friesen, the Court wrote:

Likewise, where the person before the court is Indigenous, courts must apply the principles from R. v. Gladue, [1999] 1 S.C.R. 688 (S.CC), and Ipeelee. The sentencing judge must apply these principles even in extremely grave cases of sexual violence against children (see Ipeelee, at paras. 84-86). The systemic and background factors that have played a role in bringing the Indigenous person before the court may have a mitigating effect on moral blameworthiness (para. 73). Similarly, a different or alternative sanction might be more effective in achieving sentencing objectives in a particular Indigenous community (para. 74).

[41]         As a result, the Court further concluded that:

the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality. (at paragraph 104)

RANGE OF SENTENCE

[42]         At the time the Indictment against WCC was filed, the maximum penalty for both sexual interference (section 151 of the Criminal Code) and invitation to sexual touching (section 152 of the Criminal Code) was 10 years.  Parliament subsequently increased that maximum sentence to 14 years.  However, WCC is entitled to the benefit of the statutory provisions in place at the time of the Indictment – i.e. a maximum sentence of 10 years and not 14 years.

[43]         I have carefully read the cases presented by the parties.  Friesen mandates an “upward departure” from prior jurisprudence when determining an appropriate custodial sentence (at paragraph 107).  As such, the Supreme Court of Canada indicated that sentencing caselaw which pre-dates Friesen will be of limited value. (at paragraphs 107 – 114).  I am grateful for counsel attempting to focus on the jurisprudence which post-dates Friesen.

[44]         Of course, no 2 offences and no 2 offenders are identical.  However, the principles of parity and proportionality operate in tandem with a view to ensuring that similar offences attract a similar sentence.

[45]         Having regard to all of the circumstances in this case, I agree with the Crown that the normal range is 4 - 6 years. I should say that I have specifically considered the Supreme Court of Canada’s direction in Friesen for sentencing judge’s to act upon Parliament’s call for harsher sentences and, more precisely, its statement 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” (at paragraph 114).

[46]         That said, while the Crown does not propose a custodial sentence of less than 4 years, it acknowledges based on Gladue that the Court has the discretion to move outside of that range is appropriate circumstances.  In my view, and for reasons discussed below, the Gladue factors loom large in this case and compel a slightly reduced sentence.

ANALYSIS AND CONCLUSION

[47]         At paragraphs 121 – 154 of Friesen, the Supreme Court of Canada describes in detail 6 factors that are entitled “significant factors for determining a fit sentence” in cases involving sexual violence against children. They are:

1.                 Likelihood to Reoffend

2.                 Abuse of a Position of Trust or Authority

3.                 Duration and Frequency

4.                 Age of the Victim

5.                 Degree of Physical Interference

6.                 Victim Participation

[48]         These factors generally speaking, as described by the Supreme Court of Canada, typically go to aggravating circumstances that might arise in a particular case. There are other mitigating circumstances that will be discussed here, including, for example, the Gladue factors. Dealing with each factor in order:

1.                 Likelihood to re-offend:  The Crown acknowledges that WCC does not have any prior record for sexual offences other than the 2 in question and that it has been over 12 years since the date of the offences.  The Crown further acknowledges that WCC has not been accused or convicted of committing any further sexual offences. Having said that, the Crown states that because WCC did not consent to participate in a pre-sentence sexual offender behaviour assessment, there is also no evidence that he would be a low risk to reoffend. As such, the Crown concludes that this is a neutral factor.

Respectfully, I disagree.  In my view, Crown’s submissions do not properly take into account the passage of time in assessing the risk of the likelihood of reoffending and the fact that WCC was convicted of 2 sexual assaults which occurred 17 years ago.  There is no evidence of similar, criminal sexual deviancy since that time.  This is not to say that WCC is not a person capable of manipulative, exploitive sexual misconduct.  The facts suggest otherwise.  However, the evidence (including CC’s victim impact statement) indicates that WCC is now a man who lives by himself; stays to himself and exhibits no inclination towards significant social contacts outside his family – and certainly not with any children. Obviously, none of this diminishes the sexual abuse associated with these crimes against CC.  However, in the circumstances, to suggest that a sexual offender whose crimes date back many years can only neutralize the risk of recidivism by submitting to invasive, otherwise voluntary medical testing unduly diminishes the evidence that is available in this case.  I am concerned that it would also amount to a presumption that assessing a sexual offender’s risk of re-offending is inextricably tied to the presence (or absence) of this type of testing regardless of what additional evidence might demonstrate.  In my view, the evidence indicates that WCC presents a low risk to re-offend.  I return to this issue below when addressing the request for a section 161(1) prohibition order.

2.                 Abuse of a Position of Trust or Authority: There is no doubt that this is a significant, aggravating factor.  WCC has been convicted of betraying his daughter in a deeply harmful and lasting way.  He was responsible for protecting his daughter and yet, on 2 occasions in 2008, in the middle of the night, he violated her sexual integrity in a humiliating and incomprehensible manner.

3.                 Duration and Frequency: The Supreme Court of Canada identifies this as a potentially aggravating factor, but in this case, there were 2 distinct occasions that occurred 17 years ago. I do not see it as a significant aggravating factor. Obviously, this does not mean that the underlying sexual crimes are diminished or forgotten.  It simply means that they should be placed in their proper context.

4.                 Age of the Victim: In this case CC was only 6 years old when her father, WCC, violated her sexual integrity on 2 separate occasions. In my view, this is an aggravating factor.

5.                 Degree of Physical Interference: This factor is intended to reflect the degree of violation of the victim's bodily integrity and it can become a significant aggravating factor.  However, I note that in this case, the crimes in question involved sexual violence but not extremely physical violence such as, for example, bodily harm or intercourse.

6.                 Victim Participation: In this case, given the age of CC at the time of the offences, it is not a factor for the Court to consider. Under no circumstances could it be said that CC somehow participating in a way that could be seen as anything other than aggravating.

[49]         In terms of mitigating factors, I note that WCC exercised his allocution rights today and he offered to CC an apology which I accept was genuine, heartfelt and consistent with actions since his conviction that suggest deep remorse. WCC has himself endured a significant amount of suffering throughout his life. He knows what it means when a child is subjected to physical and sexual violence. He knows of the lasting scars.  In my view, WCC’s words and actions during this sentencing process reveal an insight into the nature and severity of the violation he inflicted upon his daughter.

[50]         More importantly for the purposes of this case are the Gladue considerations. This is an extremely compelling case in my view for a reduced custodial sentence. WCC was not afforded the same enlightening or uplifting opportunities available to others.  His home was filled with sexual and physical violence rooted in his father’s own dysfunctional upbringing and representing a continuing cycle of intergenerational trauma.  School offered a temporary release from domestic abuse.

[51]         Worse, other systemic structures designed to protect vulnerable children totally failed WCC.  The Children’s Aid Society was called in to help a young WCC.  In an inexpressibly sad betrayal, the caseworker assigned to WCC sexually preyed upon him instead.

[52]         Where other children are allowed to flourish, WCC was forced to survive.  Ultimately, WCC escaped home and left school at the age of 14.  For the next 20 years, he survived mainly through drugs and crime. More recently, WCC has made considerable progress towards sobriety and relative stability.  

[53]         In my view, the Gladue factors loom very large. The particular circumstances in this case provide a uniquely compelling reason for a reduced sentence.

[54]         As indicated above, the normal range in these circumstances would be 4 – 6 years.  Having regard to the Gladue principles and given the unique circumstances of this case, it is my emphatic opinion that 3 years imprisonment in a Federal institution is a fit and proper sentence. I also strongly recommend that Corrections Services Canada consider and place WCC in the care (and treatment) of either the Psychiatric Services Division, or, preferably, in one of its Healing Lodges.  Based on the information presented at this sentencing hearing, WCC is worthy and deserving of these accommodations so that he might remain sober, heal, restore his relationship with CC and hopefully break the cycle of intergenerational trauma.

Ancillary Orders

[55]         The Crown seeks the following ancillary orders:

1.                 A permanent weapons prohibition order under section 109 of the Criminal Code (except for sustenance purposes);

2.                 An order under section 487.051 of the Criminal Code requiring the taking of bodily substances as reasonably necessary for the purpose of forensic DNA analysis;

3.                 An order requiring compliance with (and registration under) the Sexual Offender Information Registration Act under section 490.012 of the Criminal Code; and

4.                 A prohibition order under section 161(1) of the Criminal Code.

[56]         I am prepared to grant the ancillary orders, with the exception of the order sought under section 161(1). I have been provided with a proposed order from the Crown. The case law indicates that the Court has the discretion under section 161 to issue this order. In exercising this discretion, the predominant protective function is to safeguard children from sexual violence, including the risk of re-offending.  Section 161(1) orders must be tailored with those overarching goals in mind, having regard to the unique circumstances of the particular offender.  (R v J. (K.R.), 2016 SCC 31 (“R v J.(K.R.)”) at paragraph 47.  See also paragraph R v R.J.H., 2021 BCCA 54 at paragraph 18)

[57]         In this case, the Crown suggests that the risk associated with WCC re-offending relates to him being in positions of trust, and abusing a position of trust in the manner he abused his position of trust with his daughter CC 17 years ago.

[58]         I agree that in cases involving sexual abuse of children, a section 161(1) order should be the norm.  Any exceptions should be rare.  Bearing in mind the principles set forth in Friesen including the goals of key priorities of denunciation and deterrence, the Court should be circumspect and cautious before not imposing a section 161 order in circumstances involving the sexual abuse of a child.

[59]         However, the Court still retains a discretion under section 161.  In my view, the circumstances in this case are exceptional.  The risk of WCC re-offending is extremely low. There are 2 instances of sexual abuse involving CC in 2008.  There is no evidence before me (including from CC) to suggest that he is an ongoing risk to children. On the contrary, all of the evidence suggests that WCC neither seeks nor wants to in the company of children or, for that many, many other people.  He does not work with children.  He has never sought or obtained positions of employment in which he would be in a position of authority over children.  The evidence before me suggests that he is a person seeks to live alone, outside of society. 

[60]         Reviewing the specific provisions of section 161(1), attempting to tailor a prohibition order to address the enumerated issues would not achieve any practical benefits.  WCC does not attend at the locations identified in section 616(1)(a).  As to section 616(1)(a.1), the complainant CC does not request an order precluding contact with WCC. On the contrary, her statements to the Court indicate that it will take time to restore her relationship with WCC but that this is a goal. As to section 616(1)(b), again, there is no evidence WCC has worked or volunteered in any capacity where he would be a position of trust or authority over children. To the extent WCC has an employment record, it does not involve children.  As to section 616(1)(c), there is no evidence that WCC has any ongoing involvement with children and, in any event, the risk of re-offending is low in the unique circumstances of this case.  As to section 616(1)(d), I have no evidence regarding WCC’s computer use or that computers were in any way involved in his prior crimes.

[61]         WCC does need help to maintain his sobriety and treatment to address the historic wounds as an indigenous person and, as well, to reconcile his own suffering with the wounds he inflicted upon others including CC.  The custodial sentence is fashioned to ensure he receives the necessary treatment. 

[62]         The issue and primary focus in this sentence is denunciation and deterrence – all tempered by the principles expressed Gladue and Ipeelee.  This is otherwise an exceptional case in which a prohibition order is not necessary to achieve the section 161 objectives as confirmed in R v J. (K.R.) or Friesen.

[63]         With Crown’s consent, the victim surcharge fine is waived.

Keith, J.