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SENTENCING - Sexual interference - Sentencing considerations - Sexual offences against children - Sentencing precedents or starting point

Thursday, April 02, 2020 @ 2:52 PM  


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Appeal by the Crown from a decision of the Manitoba Court of Appeal that reduced Friesen’s sentence for sexual interference and extortion from six years to four and one-half years. Friesen met the mother of the victim, a 4-year-old child, through an online dating website. On the evening of the events, the mother picked Friesen up from a bar and brought him to her residence, where they engaged in consensual sexual intercourse. Friesen then told the mother to bring the child to the bedroom, which she did. Friesen and the mother subjected the child to sexual violence. Her screams and cries woke the mother’s friend, who removed the child from the room. Friesen then threatened the mother, repeatedly telling her that unless she brought the child back, he would tell the mother’s friend that the mother had sexually abused her 1-year-old son. Friesen fled the residence when the mother’s friend confronted him about the sexual violence. Friesen pleaded guilty, and was given a six-year sentence for sexual interference and a concurrent six-year sentence for attempted extortion. The trial judge determined that the four-to-five-year starting point for major sexual assault committed on a young person within a trust relationship by means of violence, threats of violence, or grooming, which the Manitoba Court of Appeal had identified in R. v. Sidwell, was appropriate even though Friesen did not stand in a position of trust. The Court of Appeal held that the trial judge had erred in relying on the Sidwell four-to-five-year starting point since he had found that there was no trust relationship between Friesen and the child. Consequently, the trial judge “relied upon an aggravating factor that he had found did not exist”. The Court of Appeal reduced the sentence to four and one-half years for sexual interference and 18 months for attempted extortion, to be served concurrently. Only the sentence for sexual interference was appealed by the Crown.

HELD: Appeal allowed. An appellate court could only intervene to vary a sentence if (1) the sentence was demonstrably unfit or (2) the sentencing judge made an error in principle that had an impact on the sentence. All sentencing had to start with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Canadian appellate courts often provided guidance in the form of ranges of sentences, which were “summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives”. Sentencing ranges and starting points were guidelines, not hard and fast rules. Appellate courts could not treat the departure from or failure to refer to a range of sentence or starting point as an error in principle. Protecting children from wrongful exploitation and harm was the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. Sentences had to recognize and reflect both the physical and psychological harm that sexual offences against children caused and the wrongfulness of sexual violence, in a manner that fully reflected the “life-altering consequences” that could and often did flow from the sexual violence. Parliament had recognized the profound harm that sexual offences against children caused and had determined that sentences for such offences should increase to match Parliament’s view of their gravity. Parliament had expressed its will by increasing maximum sentences and by prioritizing denunciation and deterrence in sentencing for sexual offences against children. In keeping with those legislative initiatives, the following guidelines applied: (1) upward departure from prior precedents and sentencing ranges could be required to impose a proportionate sentence; (2) sexual offences against children should generally be punished more severely than sexual offences against adults; and (3) sexual interference with a child should not be treated as less serious than sexual assault of a child. In Friesen’s case, the Court of Appeal based its intervention on an error in principle that the trial judge did not make. The trial judge determined that it was appropriate to employ a four-to-five-year starting point because the aggravating circumstances of the case warranted it. He sought to exercise his discretion in a way that gave effect to the principles of sentencing, in light of the circumstances of the case. In so doing, his decision should be accorded deference. Friesen’s lack of insight into his behaviour was “frightening” for the risk he posed to children in the future. In these circumstances, the trial judge was entitled to conclude that the aggravating factors were so serious as to place the case on par with the starting point the Manitoba Court of Appeal had set for major sexual assault committed on a young person within a trust relationship by means of violence, threats of violence, or by means of grooming. The trial judge’s reasoned choice to employ a higher starting point than the Court of Appeal preferred did not justify appellate intervention. The sentence imposed by the trial judge for the sexual interference conviction was restored.

R. v. Friesen, [2019] S.C.J. No. 100, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., October 16, 2019. Digest No. TLD-March302020012-SCC