R v EF, 2021 ABQB 272

Court of Queen’s Bench of Alberta Citation: R v EF, 2021 ABQB 272 Date: 20210409 Docket: 181377235Q1 Registry: Edmonton Between: Her Majesty the Queen - and - E.F. Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the Complainant who is referred to as AB in these Reasons, or the young person who is referred to as CD in these reasons, must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published.

Corrected Judgment: A Corrected Judgment was issued on April 13, 2021; the corrections have been made to the text and the corrections are appended to this judgment. _______________________________________________________ Reasons for Sentence of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] EF was convicted, after trial, of sexual interference contrary to CC s 151 and of luring of a child by telecommunication contrary to CC s 172.1(b). The Reasons for Decision in which I found EF guilty are at 2021 ABQB 209 .

The question now is as to a fit sentence for EF. [ 2 ] The victim of EF’s offences is a young person who was 15 years old at the time of the offences. As in my Reasons for Decision, I will refer to her as AB to protect her identity. Later in these Reasons I also mention the offender’s daughter who was 14 years old at the time of the offences against AB. As in my Reasons for Decision, I will refer to her as CD to protect her identity. I refer to the offender as EF so as to protect the identity of his daughter, CD.

Circumstances of the Offences [ 3 ] The circumstances of EF’s offences are set out in detail in my trial Reasons for Decision. In very brief

summary, EF “met” AB on an internet messaging application called Chat Hour in the fall of 2018. After an interruption of their communications with each

other, EF resumed the connection on November 5, 2018. EF told AB that he would be coming to Edmonton from southern Alberta for business reasons a few days later. He proposed that they meet for the purpose of having sexual relations. AB agreed. On November 5, 6 and 7, EF and AB exchanged a total of 947 messages on Chat Hour, the content of most of which was explicitly sexual. Several of the messages are quoted or otherwise described in my trial Reasons. [ 4 ] EF and AB met in person on the afternoon of November 7, 2018.

EF took AB first to a liquor store where he bought alcohol, then to a store where he bought lubricant intended to be used in sexual relations, then to a hotel where EF had a room. In the hotel EF and AB had sexual intercourse. They then went to West Edmonton Mall, ate a meal at the food court and went to a movie. They then returned to the hotel and had further sexual relations before the police, having been called by AB’s mother who had intercepted some of the messaging between EF and AB, interrupted them and arrested EF.

Victim Impact Statements [ 5 ] I understand AB, though invited to do so, did not wish to provide a victim impact statement. [ 6 ] Victim impact statements were filed by each of AB’s parents. AB was not living with either parent at the time of EF’s offences. She was living in a group home. AB’s mother was able, however, to log into AB’s Chat Hour communications. She described the stress, worry and guilt that she felt as she read the messages that passed between EF and AB prior to their meeting.

These effects became particularly intense when AB’s mother learned, on the day that EF and AB were to meet, of the meeting arrangements and the purpose of the meeting. This is when AB’s mother called the police. Since the day of the offence, she has continued to endure feelings of stress, worry and guilt. Her worry for AB has not abated given that AB has refused professional help to overcome the harm EF’s acts have caused to her, and given that AB has engaged in unhealthy activity in order to dull her emotions. She notes that at the time of her relations with EF, AB “was a child with other issues”.

She was vulnerable to victimization by EF. AB’s mother described the difficulties that having to testify at EF’s trial presented for AB – the shame she felt, the lengths she went to “to hide from her closest friends what the offender did to her for fear of being judged.” [ 7 ] In his victim impact statement, AB’s father stated that EF’s crime sent him “into long-term, on-going depression” which lead to his taking a medical leave about a year after the offences due to stress and mental health issues.

He stated that EF’s crime “forced me to lose the love of my life due to my depression and increased substance abuse.” He said, “I question myself everyday about not being able to protect my daughter. She was my ‘little girl’ that I was supposed to defend and present as the most positive male figure in her life. I no long feel that I will be able to do that . . . I don’t know what I have to live for anymore.” EF’s Circumstances [ 8 ] EF is now 50 years old. He was 48 at the time of his offences. I understand that EF grew up in southern Alberta and that he had significant involvement in athletics.

He was a lifeguard at the swimming pool in his community. He played rugby. He worked in his father’s business, most recently in sales. He was married for about seven years, and was divorced in 2013. He has four children. The three of them who are minors live with their mother. The fourth, a 19-year-old son, lives with EF. EF has regular parenting time with his younger children. [ 9 ] EF has significant community support. His mother was present in court when I announced my decision after the trial and both his mother and father were present in court during the sentencing submissions. Mr.

Engel submitted a letter from EF’s cousin to whom EF is close and who says: [EF] is a wonderful father and loves his kids immensely. He is always positive and supportive with his children. [EF] is loved, our family will always support and help him progress to turning his life around. [ 10 ] Mr. Engel, counsel for EF, also submitted letters from three community members who have known EF well. Each of them expressed shock and distress that the EF they knew could have engaged in the criminal behavior for which he has been convicted.

To them, this conduct is very far “out of character” for EF. [ 11 ] The letters include one from an RCMP officer who has been EF’s friend for about 20 years. When they met the officer was a recent immigrant to Canada and found EF and his family to be very hospitable and supportive as he adapted to life in Canada. Their friendship has been strong ever since. He says: [EF] was always honest and kind, helping people where he could, supported his family and was very well respected in his industry and social circles is what I know.

He always took pride in being a father, regardless of the struggles single fathers have. [ 12 ] Another letter was from the Executive Director of the private school which EF’s children attended after EF’s divorce. She says: While his children attended [my school], [EF] was an engaged parent. He communicated regularly with the teachers to ensure his children were keeping up with their school work. [He] volunteered to take groups of children during our ski/snowboard club at Nakiska.

He believed it was important to help others have a fair shot in life and shared this belief with his children. . . . [EF] is a kind and caring person who has always been supportive of his children and our school community. Through volunteering to generous donations, teacher meetings and fundraising: [EF] was always there to help his children, the students in the school, and our entire community. [EF] was a respected member of our parent community as he was actively involved in field trips and community events. . . .

Since learning of the charges and eventual conviction of [EF], I have continued to support him. . . I know [EF] very well and this is completely out of character. He has a big heart and is a kind person.

I will continue to support [EF] as I know these convictions do not reflect the type of person he is nor the person I have come to know over the past 8 years. [ 13 ] The principal of the school EF’s children attended for many years wrote: I have known [EF] for over ten years . . . [EF] was well known among our school parent community for being active in his children’s education, and his families’ willingness and desire to donate to the school in terms of monetary and material donations.

He was liked by all that had the privilege to know him until his eldest son graduated and the other members of his family moved away from Calgary. [EF] and his families’ contributions and caring demeanor set the bar high for other families in our small community. [EF] actively promoted giving back to the community, where he would take his daughter downtown to distribute goods and food to the needy and homeless. When I learned of the charges coming against him, I was truly shocked. This is not something that I ever would have imagined him doing or even remotely being a part of.

His relationship with all of his children was always top notch, with a caring but firm attitude and high expectations. These charges, in my opinion, are far out of character from what I have grown to know of [EF] over the years. [ 14 ] Mr. Engel also submitted a letter from the doctor who has been treating EF for over nine years. The doctor advises that EF suffers from asthma, anxiety and depression, and sleep issues. The doctor expresses concern that all of these conditions might be complicated by EF being incarcerated especially when there is a risk of exposure to Covid-19.

He also expresses concern that EF might be cut off from the medications he has prescribed for EF’s anxiety and depression and sleep issues if incarcerated. And he is concerned for EF’s mental health if he is subjected to periods of isolation as a Covid-19 precaution upon his admission to gaol, especially if he does not have access to his medications. [ 15 ] Finally, Mr. Engel provided a letter from a psychologist who has had three one-hour counselling sessions with EF in the recent past.

The psychologist was aware of the allegations against EF at the time of the sessions and of EF’s convictions and the reasons for them at the time of his letter. The psychologist reports: The impression I had concerning [EF] after those sessions was, first, that he was suffering from an adjustment disorder with depressed mood related primarily to relationship issues and the legal proceedings of the past few years.

Second, [EF] appears to have childhood emotional wounds, including likely attachment issues, that have contributed to, and/or manifested in, “pleasing people” behaviour, unhealthy romantic relationships, and, conceivable, the actions for which he is now charged. [ 16 ] The psychologist indicates that he has begun to provide EF with EMDR (eye movement desensitization and reprocessing) therapy to address these issues.

He has had experience in the prison system and expects that the type of treatment he thinks EF needs is not likely to be available within that system. [ 17 ] The psychologist observes: . . . my impressions from meeting with [EF] are that he recognizes he has caused emotional damage to many people by his actions, that he has gained insight about himself and relationships, and that he is committed to a positive change process. In other words, it is my impression that he is not a danger to the community. Further, I do not believe that jail will serve any rehabilitative purpose for him. [ 18 ] Mr.

Engel noted that after I found EF guilty and revoked his bail, EF was sent to the Edmonton Remand Center. He was put in isolation, which I understand is currently the normal requirement at ERC for newly admitted inmates because of Covid-19 concerns. EF’s period of quarantine was not completed as of the date of the sentencing hearing. Accordingly, he was not able to attend in Court for that hearing, but rather, in accordance with ERC policy, appeared by CCTV. I was advised that EF very much wanted to be present in court for those proceedings. [ 19 ] Mr.

Engel also advised that upon his arrival at ERC, EF was cut off his medications, though he was not seen by a mental health professional, and though he had taken his supply of medications to the ERC with him. EF was told this was because of “budget concerns”. Later he was allowed to take a half dose of the medication prescribed to him for his mental health concerns. This was later increased to a three quarter dose. He has still not been seen by a mental health professional at ERC. He has not been allowed to take the medication prescribed for his sleep issues. [ 20 ] Mr.

Engel identified several other conditions at ERC which, he submitted, are unacceptable, especially during Covid times, and have made EF’s 10 days there unreasonably difficult.

These include insufficient food, being shackled (I assume when being transported), being subjected to a strip search on arrival, being denied reading material and access to television, being required to use shower facilities that are not cleaned after every use, being required to wear the same clothes long past when they ought to have been laundered, being kept during his quarantine period in his cell for 23½ hours a day. [ 21 ] EF has a criminal record. It consists of two convictions in 1995 for failure to appear for which he received small fines. Mr.

Nicholls conceded that these should be given little significance in the present proceedings. [ 22 ] EF was also found guilty in the fall of 2020 by a jury of sexual interference. The complainant in that case was CD, EF’s then14-year-old daughter. The date of that offence was a few weeks before the date EF committed the offences now before the Court. He was not charged with the offence against CD until after he was charged with the offences against AB.

He has not yet been sentenced in respect of the offence against CD. [ 23 ] Finally, EF was convicted, after guilty pleas, of two counts of breach of the recognisance he entered when released on judicial interim release following his arrest on the charges now before the Court. The sentence imposed was 30 days in custody which was satisfied by time he had served in custody following arrest for the recognisance breaches. The Crown’s Position

[ 24 ] Mr. Nicholls, for the Crown, submitted that a fit sentence for EF would be eight years incarceration for the sexual interference conviction and three years incarceration for the child luring, to be served consecutively to the eight years – a total sentence of 11 years. [ 25 ] Mr. Nicholls cited R v Friesen 2020 SCC 9 which he submitted represents a paradigm shift with regard to sentencing for sexual offences against children. He referred to several specific points made by the Supreme Court in Friesen with regard to sentencing for sexual offences against children. In particular: a.

Sentences for sexual offences against children must reflect and respect Parliament’s will, as evidenced by Criminal Code amendments which have increased the maximum sentences for such offences. Such offences must be punished more harshly than they have been in the past. ( Friesen , para. 45 and paras. 95 to 100) b. Sexual violence against children is especially wrongful because the offenders exploit the vulnerability of children. They take advantage of “the innate power imbalance between children and adults that enables adults to violently victimize them.” ( Friesen , para. 65 ) c.

The wrongfulness and harmfulness of the offence must inform the assessment of the gravity of the offence, the degree of the offender’s responsibility and the application of the proportionality principle. ( Friesen , para. 75 ) d. Offending conduct which consists entirely of electronic communication with a child can constitute a form of psychological sexual violence that has the potential to cause serious harm. ( Friesen , para. 82 ) e. Sentences for sexual offences against children must be harsher than sentences for sexual offences against adults.

Decisions of appellate courts which have set the same starting point sentence or sentence range for sexual assault of an adult and sexual interference with a child, are mistaken. The Alberta Court of Appeal’s starting point of three years for “major sexual interference” set in R v Hajar 2016 ABCA 222 should be increased given that it is the same as the starting point set by the same court for major sexual assault in R v Arcand 2010 ABCA 363 . ( Friesen , para. 115, 117 and 118 ). f.

Assessment of the gravity of the offence must focus on the harm done to the victim as opposed to the particular nature of the actual sexual act. As the sentence is imposed before the harm to the victim has become fully manifested, the court must consider reasonably foreseeable harms to the victim caused by the offender’s conduct. To do otherwise would be to falsely imply that children simply outgrow the harm of sexual violence. ( Friesen , para. 80 ) g.

If the conviction for a single charge includes multiple instances of sexual violence, the sentencing judge is to give weight to this factor and should not analogize the case to single instance cases simply because those cases also involved only a single charge. ( Friesen , para. 132 ) h. Mid-single digit penitentiary terms for sexual offences against children should be considered normal and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.

Substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim. Maximum sentences should not be reserved for the “abstract case of the worst crime committed in the worst circumstances.” ( Friesen para. 114 ) [ 26 ] As to the offence of child luring, Mr.

Nicholls cited R v Legare 2009 SCC 56 where the Supreme Court said at para 2: Shielded by the anonymity of an assumed online name and profile, [predatory adults] aspire to gain the trust of their targeted victims through computer “chats” – and then to tempt or entice them into sexual activity, over the internet or, still worse, in person. He also referenced the discussion of the dangers and moral blameworthiness of child luring in R v Morrison 2019 SCC 15 , R v Woodward 2011 ONCA 610 and R v Hajar 2016 ABCA 222 . [ 27 ] Mr.

Nicholls noted that CC s 718.01 requires that for an offence which involved the abuse of a person under 18 years of age, the court must give primary consideration to the objective of denunciation and deterrence of such conduct – primary consideration over the other sentencing goals listed in CC s 718 (separation of the offender from society, where necessary; rehabilitation of the offender; provision of reparations to the victim or community; promotion of a sense of responsibility in the offender). [ 28 ] Mr.

Nicholls identified several elements of the circumstances which he submitted are aggravating: a. that EF’s victim, AB, to EF’s knowledge, was a troubled youth estranged from her parents, living in a group home, coping with some kind of emotional upset and particularly vulnerable to his luring; b. that, ignoring the implications to AB’s health, EF did not use a condom during the sexual encounter; c. that EF obtained and anticipated giving AB alcohol; d. that EF’s crime involved two incidents of sexual relations with AB on the same day separated by several hours; e. that the electronic communications by which EF lured AB included extremely sexually explicit and depraved sexual content; f. that EF’s encounter with AB at the hotel for the purpose of having sexual relations with her was clearly pre-meditated – EF acted according to a detailed plan made in advance of his actions; g. that about six weeks before his offence against AB, EF engaged in similar criminal activity where the victim was CD, his 14-year- old daughter.

His predation on young girls continued until stopped by an external force, the police. [ 29 ] Mr. Nicholls submitted that there are no mitigating circumstances.

The Defence Position [ 30 ] Mr. Engel submitted that a fit global sentence would be three to four years incarceration. [ 31 ] Like Mr. Nicholls, Mr.

Engel also drew attention to what the Supreme Court has said about sentencing for sexual offences against children in Friesen . [ 32 ] He submitted that whatever else the Supreme Court said in Friesen , it left intact the long-standing principle that the sentencing judge must craft a punishment that is individualized to the circumstances of the offence and the offender. [ 33 ] He observed that in Friesen the Supreme Court said, in paragraph 114, that “mid-single digit penitentiary terms for sexual offences against children are normal”.

He acknowledged that the Court also said, in the same sentence, that “upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances”. But, he submitted, the SCC, by identifying mid-single digit term sentences as “normal”, has left room for sentences lower than that.

The Court did not say that mid-single digit term sentences should be considered the minimum. [ 34 ] Further, though the Supreme Court said that sentences for sexual offences against children should be harsher than they have been in the past, it has left a very wide range within which sentencing judges are to craft a sentence which is just in the circumstances of the offence and offender under consideration. [ 35 ] Mr. Engel noted that, also in Friesen , the Supreme Court identified and discussed a number of specific factors which should inform the determination of a fit sentence in this case.

These factors are: a. the likelihood that the offender will reoffend ( Friesen paras. 122 to 124 ) b. the abuse of a position of trust or authority ( Friesen paras. 125 to 130 ) c. the duration and frequency of the sexual violence ( Friesen paras. 131 to 133 ) d. the age of the victim ( Friesen paras. 134 to 136 ) e. the degree of physical interference ( Friesen paras. 137 to 147 ) f. participation by the victim ( Friesen paras. 148 to 154 ) [ 36 ] Finally, Mr. Engel noted that the Supreme Court discussed the application of the sentencing principle of totality beginning at para. 157 of Friesen . [ 37 ] Mr.

Engel submitted that there is no evidence before me of actual harm caused to AB by EF’s criminal actions. He observed that the victim impact statements of AB’s mother and father say little of the condition of AB before EF had contact with her. He argued that the victim impact statements, particularly that of AB’s father, wrongly assign blame to EF for AB’s situation. He noted that prior to EF’s involvement with her, AB was already estranged from her separated mother and father and had declined counselling.

The conclusion that AB was significantly damaged by EF’s conduct, he submitted, relies on assumption and speculation, not evidence. [ 38 ] Mr. Engel acknowledged that AB’s mother’s victim impact statement is evidence that she, AB’s mother, was damaged as a result of EF’s actions. As to AB’s father, it appears that the problems he described in his victim impact statement existed before EF’s contact with AB. The extent to which they were worsened by the crimes against his daughter is far from clear. And both parents, Mr.

Engel submitted, must have been in a state of very serious distress about the situation of their daughter, AB, before EF had contact with her. [ 39 ] Mr. Engel addressed the depraved content of the messages which were exhibited at trial. He noted that the only evidence about that depravity is the messages themselves. Neither AB nor EF were asked any questions about the explicit sexual content of the messages.

He submitted that in the absence of evidence from AB or EF about the content of the messages, EF should not be punished for the graphic and sexually explicit nature of that content. [ 40 ] He submitted that I must be careful in assigning aggravating effect to the sexual depravity contained in the text communications between EF and AB. He questioned the extent to which that aspect of the messages is rightly characterized as being for the purpose of facilitating a sexual offence against AB.

He observed that it seems clear that the purpose of the explicit sexual content was EF’s immediate sexual gratification at the time of the messaging rather than the luring of AB. The luring of AB was accomplished by EF proposing that they meet in order to have sex and AB agreeing to that proposal. That the depraved sexual content of the messages aggravated the luring, he submitted, has not been proved beyond a reasonable doubt. [ 41 ] Mr.

Engel noted that the sexually explicit content of the messages might have been relevant to the child pornography charges with which EF was charged but which the Crown withdrew at the commencement of the trial. He submitted that EF should not now be punished by way of an aggravating circumstance for conduct which was the subject of charges the Crown chose not to pursue and of which EF was therefore not convicted. [ 42 ] As to mitigating circumstances, Mr. Engel submitted that EF inflicted no physical violence on AB. There is no indication that EF forced sexual intercourse on AB.

In her Zebra Centre interview AB suggested that EF had been nice to her and was a friend. She declined a full SART examination in an attempt to limit the trouble brought against him. [ 43 ] Mr. Engel submitted that the indications in the letters from EF’s physician and his psychologist that EF suffers from mental health issues (see paras. [14] to [17] above) mitigate his offences. He observed that the letters of reference previously described (see

paras. [10] to [13] above) demonstrate that responsible citizens who know EF well have been shocked by his behaviour in these offences, consider his behaviour very much out of character, and continue to support him notwithstanding his offences. These letters, Mr. Engel submitted, support the conclusion that specific deterrence is not needed in EF’s sentence, that the likelihood of reoffence is minimal, and that he has excellent rehabilitation prospects. [ 44 ] Mr.

Engel submitted that it is relevant to a determination of a sentence fit to the circumstances that EF is being sentenced at what appears to be the start of a “third wave” of the Covid-19 pandemic. There are multiple implications. In prison EF will be living in close proximity to other people. In the first year of the pandemic there have been outbreaks of Covid-19 in several Alberta correctional institutions. EF’s doctor reports that EF has asthma and says, “People with asthma present a higher risk for complications should they contract Covid-19.

Such complications could include a respiratory compromise possibly leading to respiratory failure.” In response to these dangers, Alberta correctional institutions have taken precautions to avoid the spread of this extremely contagious disease – including admission quarantine, the limitation or cancellation of programs which are offered to inmates in normal times and the cancellation of visits from family members. There is no indication at this point when EF will be vaccinated. No one knows how long these circumstances will continue to exist. Mr.

Engel submitted that these circumstances will render EF’s sentence significantly harsher that it otherwise would be. This should be taken into account in determining the length of the sentence. [ 45 ] Mr. Engel submitted that EF’s sentence should be reduced because the police violated his Charter rights in the course of the investigation of these offences. I found, in a pre-trial application ( 2021 ABQB 114 ), that the police had cavalierly and seriously breached EF’s Charter s 10(

b) right to counsel by denying him access to a telephone for over two hours from the time he ought to have been given such access. I held however, that the particular evidence that EF sought to have excluded as a result of the breach should not be excluded. At trial, EF conceded the only issue to which the evidence in question would have been relevant and it was never adduced. Mr. Engel submitted that this breach of EF’s Charter rights should now result in a reduction of his sentence. He cited R v Nasogaluak 2010 SCC 6 as authority supporting this submission. [ 46 ] Mr.

Engel submitted that the cruel treatment EF has received in the Edmonton Remand Centre in the 10 days he has been there since I revoked his bail should result in a reduction of his sentence. I described these conditions in paragraphs [18] to [20] above. He cited R v Prystay 2019 ABQB 8 . [ 47 ] Mr. Engel submitted that a sentence of the length the Crown has submitted is appropriate, 11 years, would be “crushing” – it would crush the otherwise realistic hope that EF can be rehabilitated. He cited R v Moriarity 2016 ABPC 25 at para. 69 ; R v Attia 2020 ABQB 805 at para. 5 ; and R v.

Shivak 2021 ABQB 72 at para. 121 . The Harm Caused by EF’s Crime against AB [ 48 ] As emphasized in Friesen , the harm caused to the child victim by the sexual interference is to be a central focus in the determination of a fit sentence. The evidence before me does not directly address the harm EF has caused to AB by his crimes. However, the required focusing does not depends on specific evidence establishing the specific harm suffered by a specific victim. The harm is inherent in the crime.

The important point is that in assessing the moral blameworthiness of EF’s crime for the purpose of crafting a fit sentence, I must fully appreciate the scope of that inherent harm. [ 49 ] The harm inherent in sexual interference was discussed at length by the ABCA in R v Hajar 2016 ABCA 222 beginning at paragraph 61 . The discussion includes these points: a.

The harm to a child victim of sexual interference includes a serious violation of the victim’s body and sexual integrity and a breach of their human dignity and privacy. (para. 62) b. “Many victims of child sexual assault have something very important stolen from them – their childhood.” (para. 62) The ABCA quoted an academic writing on this point: Children and adolescents who are exposed to sexual experiences of one sort or another with an adult have been cheated out of their opportunity to experience sexual contact in a situation of genuine choice in the context of an equal power relationship.

They may also have been fooled into making faulty self-attributions of consent. In addition, there is always injury in terms of the affront to human dignity arising from having bodily and psychological integrity infringed without giving informed consent independent of any resultant psychological symptoms, level of resilience, or reports of psychological harm. (Sonja Grover, “On Power Differentials and Children’s Rights . . .” cited by ABCA in footnote 37.) c. It is the likelihood of harm rather than the causation of harm that characterizes an instance of major sexual interference.

The likelihood of psychological or emotional harm is a major consideration where the child victim of sexual interference is under 16. (para. 63) d. The expert evidence adduced and accepted in Hajar was that “there is a foreseeable and significantly increased risk of profound short- and long-term negative developmental and psycho-social outcomes even where the children gave their de facto consent, including in the context of a “relationship” with an older “partner” .

The risk is of lowered self-esteem, depression, suicidal ideation, poor school performance or lower levels of educational attainment or school completion and significant negative impact on current and future social relationships and intimate relationships.” (para. 64) e. The harm caused by the offender is to society and the victim’s family as well. “Devaluation of any members of society is an evil in itself, as well as criminal. . . .

Society as a whole is diminished and degraded.” (para. 67) And the social consequences endure “when child abuse in one generation leads to ramifications over generations.” (para. 68) f. The harm the offender has caused is “fundamental to understanding the seriousness of this crime . . . This harm may be even more serious than the violation of the child’s physical integrity but less obvious, indeed even unascertainable, at sentencing. At this stage, the

child may not recognize, much less accept, the extent of any existing harm or the likelihood of harm in the future. Nevertheless, in sentencing for major sexual interference, the sentencing judge must take into account the likelihood of serious psychological or emotional harm to the child victim irrespective of the child’s de facto consent.” (para. 65) Sentencing Cases [ 50 ] Counsel referred me to several post- Friesen sentencing decisions. I will briefly summarize the circumstances of these cases and Friesen itself and the sentences imposed in them.

In all of these cases, the judges were cognizant of the “paradigm shift” presented by the Supreme Court in Friesen . R v Friesen 2020 SCC 9 (April 2, 2020) [ 51 ] The trial judge sentenced the accused to six years for sexual interference, and six years for attempted extortion of the child victim’s mother, the two sentences to be served concurrently. The Manitoba Court of Appeal reduced the sentence to four and a half years for the sexual interference and eighteen months for the attempted extortion, the sentences to be served concurrently.

The Supreme Court of Canada restored the sentence of six years imposed by the trial judge for the sexual interference and did not deal with the sentence for attempted extortion. [ 52 ] The accused met the four-year-old victim’s mother online. The accused went to the mother’s residence. After having consensual sexual relations with her, the accused told the mother to bring the victim, her daughter, to him and both of them subjected the daughter to sexual violence. The child’s screams awoke another resident of the house who removed the child from the room.

The accused then threatened the mother that unless she brought the victim back to him, she would tell the woman who had rescued the child that the mother had previously sexually abused her one-year-old son. [ 53 ] Aggravating features included the victim’s young age – the Supreme Court agreed with the trial judge’s characterization of this as an “incredibly aggravating” fact. The child had clearly suffered immediate physical harmful consequences from the assault. It aggravated the harm that the accused involved the child’s mother in the sexually abusive conduct – he exploited the mother’s position of trust.

It aggravated that the accused had coordinated the sexual violence against the child with a second abuser, the mother – that multiple offenders had acted in concert to assault a defenceless four-year-old child.

The accused’s moral blameworthiness for the offence was exceedingly high. [ 54 ] The Supreme Court also identified aggravating features that neither the trial judge nor the appeal court referenced: the psychological harm to the mother of the accused’s threats; that the assault occurred in the mother’s home where the child ought to have been justified in expecting to sleep safely. [ 55 ] The Supreme Court (at para. 180) also emphasized that a sentencing judge should be attentive to evidence of an offender’s misogynistic attitudes which, the Court said, “may have a significant bearing on, among other factors, moral blameworthiness, insight and likelihood to reoffend.” [ 56 ] The Supreme Court agreed with the trial judge’s weighing of the mitigating factors: the accused’s relative youth; that the accused had himself endured a traumatic and painful childhood involving physical, emotional and sexual abuse. [ 57 ] The Supreme Court noted (para. 164) that the trial judge had not expressly recognized the accused’s guilty plea as a mitigating factor.

This did not indicate error because the Crown’s case was overwhelming, the criminal conduct having been audio- recorded. ( Friesen para. 164 ) [ 58 ] The Supreme Court was also not convinced that the accused’s expressions of remorse had significant mitigating effect because the circumstances did not justify the conclusion that he realized the gravity of his conduct – he was “in denial” or claimed to have been “blacked out” at the time of the offences. The trial judge held that the accused had no insight into his behaviour and that he continued to pose a frightening risk to children.

The Supreme Court concluded that the trial judge’s failure to mention the accused’s expression of remorse in these circumstances was not an error and did not impact the fitness of the sentence. [ 59 ] Again, as noted, the Supreme Court upheld the sentence of six years for the sexual interference. It observed that that sentence was on the lenient side. It expressly declined to address the question of whether the sentence for attempted extortion should have been concurrent or consecutive, and therefore the application of the totality principle, as these points had not been argued.

Formally, only the trial judge’s sentence for sexual interference was restored. ( Friesen , paras 181 and 182 ) R v Boucher 2020 ABCA 208 (May 15, 2020) [ 60 ] The accused committed more than 90 major sexual assaults on a 14-year-old child who viewed him as a father figure, over a period of approximately seven months. He lured the child via text messages to facilitate interfering with her sexually. He created pornographic images and videos of the sexual activity. He pleaded guilty to all charges against him on the first day of trial.

Dunlop J. sentenced him to a global sentence of eight years: six years for sexual interference; one year for making child pornography; and one year for child luring – the sentences to be served consecutively. [ 61 ] The Crown appealed seeking a global sentence of 13 years. [ 62 ] The sentence at trial preceded Friesen . The ABCA noted that Friesen therefore had little direct impact on the appeal. The

Court, nevertheless referenced many of the statements made by the Supreme Court in Friesen in determining that the sentence imposed by Dunlop J. was fit and not based on any error in principle.

The ABCA dismissed the Crown’s appeal. [ 63 ] The ABCA noted that though the number of assaults (90), the duration of the offence (4 months) and the intensity of the assaults (penile vaginal penetration) are relevant factors in sentencing, . . . “the key factor is harm to the child.” The court observed that “even one instance of sexual abuse can permanently alter the course of [a] child’s life and rather than focusing on the number of assaults a child experienced the focus should be on the harm suffered by that child.” R v.

O 2020 ABQB 497 (August 27, 2020) [ 64 ] The accused sexually abused his daughter many times over about four years from when she was nine years old to when she was 14 years old. At first the abuse occurred in the accused’s truck and later in the accused’s house. The child would sometimes kick the accused and ask him to stop. She was ignored. He threatened her against telling anyone. The sexual abuse included penile vaginal penetration and ejaculation. The accused was convicted of sexual interference, invitation to sexual touching and incest.

There was evidence from a psychologist as to the harm suffered by the child. [ 65 ] Sullivan J. held that denunciation and deterrence were the most important principles for him to apply in crafting a sentence. He accepted the Crown’s submission that a total sentence of 14 years in prison was fit. R v. Lemay 2020 ABCA 365 (October 19, 2020) [ 66 ] The 35-year-old accused sexually interfered with the 15-year-old daughter of his friend. The child referred to him as “Uncle”.

The sexual interference was preceded by daily sexually explicit texting which included the accused sending pictures of his penis to the child and coercing her to send him pictures of her genitals. The sexual interference consisted of five instances over five months and included the accused digitally penetrating the child’s vagina, putting his penis in her mouth and having her perform fellatio on him. He ejaculated into her mouth. He attempted penile vaginal penetration but stopped when the child screamed out in pain and told him to stop. He pleaded guilty to sexual interference, and child luring.

At trial, he was sentenced to a total of three and a half years imprisonment (two and a half years for the sexual interference and one year for the child luring) followed by two years probation. [ 67 ] The Crown appealed seeking a total sentence of eight years. [ 68 ] The complainant described the harm she had suffered in a victim impact statement. It included “trust issues, depression and self-harm in the form of cutting her arms and legs”. She believed her father was angry or disappointed with her and their relationship had therefore deteriorated. The accused had suffered physical and sexual abuse as a child.

He had engaged in substance abuse as a teenager. He suffered from depression and anxiety, mild PTSD and panic attacks. He reported an extensive history of self harm, including multiple suicide attempts. His expression of remorse was tempered by his presentation of himself as a victim.

He was assessed as average to moderate-low risk of sexual recidivism compared to others convicted of sexual offences. [ 69 ] The ABCA held that the trial judge had erred in not concluding and in not taking into account that the accused was in a position of trust toward the child, and in not accounting for the evolution of the Criminal Code provisions and society’s evolving view of luring (as reflected in Friesen which was released between the time of the trial judge’s decision and the appeal).

The ABCA sentenced the accused to four years for the sexual interference and 18 months for the child luring, the sentences to be served consecutively. The total sentence was therefore five and a half years . What is a Fit Sentence for EF? The Sexual Interference Offence [ 70 ] A fit sentence for EF in respect of the sexual interference conviction must be proportionate to the moral blameworthiness of his crime and the harm caused by it. [ 71 ] EF preyed on AB’s clear vulnerability. He located her easily using the Chat Hour app. He knew that she was 15 years old.

He knew that she had very significant personal problems, and that she was not living with either of her parents, but was living in a group home – a facility which attempts to help troubled youth. The depth of her vulnerability was clear given her eager acceptance of the opportunity to meet with him, to have sex with him, and to stay in a hotel with him without any coercion. The evidence at trial established that EF’s only purpose was to use AB for his own sexual gratification.

The lurid and depraved content of the messages he sent to her in the two days before they met can admit of no other conclusion. [ 72 ] EF’s moral blameworthiness for his offence of sexual interference with AB is high. Similarly, on the basis of the considerations discussed in Hajar concerning the harm caused by sexual interference with a child, the harm caused by EF to AB is very significant. The harm caused to her parents and society is also very significant. [ 73 ] I have considered the specific factors addressed in Friesen as listed in para. [35] above: a.

Likelihood that EF will re-offend: The only evidence before me which spoke directly to this point was the letter in which EF’s psychologist indicated that in his opinion, EF “is not a danger to the community”. (para. [17] above) That several responsible members of the community who know EF well continue to support him also suggests that the risk of reoffence is low. It also speaks to this point that EF expressed remorse at the sentencing hearing, which remorse in my view was genuine.

Competing with these points is the fact that EF committed sexual interference twice within about six weeks before being stopped by the police interruption of his second offence. In my view, the evidence does not permit me to conclude that there is sufficient likelihood that EF will re-offend so as to

constitute an aggravating factor. b. Abuse of a position of trust or authority: In Friesen the SCC observed that “an offender’s grooming [of the child victim] can build a new relationship of trust, a regular occurrence in child luring cases where children are groomed by complete strangers over the Internet. . . Even where grooming does not exploit an existing relationship or build a new one, it is still aggravating in its own right.” EF and AB were strangers to each other prior to the fall of 2018. I am not sure that it is right to say that EF’s grooming of AB built a trust relationship of any depth between them.

She trusted him enough to accept his proposal that they meet for sex. But in my view, to characterize EF’s position vis-à-vis AB as one of trust that should aggravate the blameworthiness of the sexual interference would be an inaccurate understanding of the circumstances. In my view, the moral blameworthiness of EF’s grooming should be assessed in the context of determining a fit sentence for the luring offence. c. Duration and frequency: EF sexually abused AB in two sessions which occurred on the same day. Between those sessions he took her to West Edmonton Mall, bought her a meal, and took her to a movie.

In my view, these circumstances do not justify the conclusion that the long-term emotional and psychological harm to AB is greater than it would be had there been only one session. This is not a situation of sexual violence committed on multiple occasions which should attract a higher sentence than it otherwise would. d. Age of the victim: AB was 15. This is not a situation where the power imbalance between EF and AB is as pronounced as it would be had EF’s victim been a younger child.

Nevertheless, that AB was an adolescent does not justify a lower sentence – it does not mitigate the moral blameworthiness of EF’s criminal conduct. This is especially so given that the age difference between EF and AB was more than 30 years. e. Degree of physical interference: This case involved penile vaginal intercourse. It did not involve any non-sexual violence.

The concern addressed by the SCC in Friesen that the harm caused by and moral blameworthiness of instances of sexual interference which involve notionally less serious forms of sexual violence, should not be assumed to be less than the harm caused by sexual interference which involves penetration, does not arise in this case. f. Victim participation: That AB was willing to participate in the sexual encounter that EF proposed – that there was “ de facto consent” – has no significance whatsoever to the assessment of EF’s moral blameworthiness for his crime. It is not a mitigating factor.

Indeed, it is not relevant in any way. It does not reduce the harm EF caused to AB. The social onus to refrain from his harmful criminal conduct was entirely on EF. No part of that onus fell to AB. [ 74 ] I have taken most of the “aggravating factors” identified by Mr. Nicholls as listed in para. [28] above into account in my assessment of the moral blameworthiness of EF’s sexual interference as just articulated.

There are three exceptions: a. that EF did not use a condom during the sexual intercourse he had with AB thereby exposing her to the possibility of disease, though not, on the evidence, pregnancy; b. that EF gave AB alcohol in the course of their encounter, although the amount of alcohol he gave her, on the evidence, was very small; c. that EF sexually interfered with his own daughter a few weeks before his offence against AB – having sexually interfered with one child, he sought out and sexually interfered with another child. His own conscience did not stop him.

The police did. [ 75 ] Each of these is an aggravating feature of EF’s crime which I have not so far taken into account in my assessment of the moral blameworthiness of his crime. In my view, the first two of these are minor aggravating circumstances. The aggravating effect of the third is tempered, in my view, by the fact that EF has yet to be sentenced in other proceedings in respect of his conviction for sexual interference with his daughter. [ 76 ] As to mitigating circumstances, I agree with Mr.

Engel that the fact that EF suffered from mental health issues at the time of the offence mitigates the moral blameworthiness of his act – though, in my view, not to a great extent. [ 77 ] Mr. Engel submitted that the breach of EF’s Charter s 10(

b) right after he was arrested is a mitigating factor. (See para. [45] above). In Nasogaluak the Supreme Court said: If the facts alleged to constitute a Charter breach are related to one or more of the relevant principles of sentencing, then the sentencing judge can properly take those facts into account in arriving at a fit sentence.

Section 718.2(

a) of the Code provides that a court should reduce a sentence “to account for any relevant . . . mitigating circumstances relating to the offence or the offender”. It would be absurd to suggest that simply because some facts also tend to suggest a violation of the offender’s Charter rights, they could no longer be considered relevant mitigating factors in the determination of a fit sentence. Indeed, the sentencing regime under Canadian law must be implemented within, and not apart from, the framework of the Charter. Sentencing decisions are always subject to constitutional scrutiny.

A sentence cannot be “fit” if it does not respect the fundamental values enshrined in the Charter. Thus, incidents alleged to constitute a Charter violation can be considered in sentencing, provided that they bear the necessary connection to the sentencing exercise. As mitigating factors, the circumstances of the breach would have to align with the circumstances of the offence or the offender, as required by s 718.2 of the Code. Naturally, the more egregious the breach, the more attention the court will likely pay to it in determining a fit sentence. [ 78 ] I accept Mr.

Engel’s submission in that regard. [ 79 ] I also accept Mr. Engel’s submission that the current and ongoing Covid-19 pandemic and the consequences it has for inmates both at the ERC and in federal penitentiaries will make EF’s sentence harsher that it would otherwise be. I agree that this should be reflected in the sentence I impose. [ 80 ] In Hajar the ABCA confirmed a starting point of three years imprisonment for major sexual interference. EF’s sexual

interference of AB is certainly within the ABCA’s definition of “major sexual interference”: ( Hajar para. 53 .) Sexual interference constitutes a major sexual interference where the sexual interference is a serious violation of the physical and sexual integrity of the child and is of a nature or character such that a reasonable person could foresee that it is likely to cause serious psychological or emotional harm, whether or not physical injury occurs.

Vaginal intercourse, anal intercourse, fellatio and cunnilingus all fall into this category. [ 81 ] As noted, the SCC held in Friesen that this starting point should be increased. The starting point should be greater than the starting point for major sexual assault. (para.[25] e above). So far as I am aware the ABCA has not addressed what, given this statement in Friesen , the starting point guideline for sexual interference should be. [ 82 ] I have considered how the circumstances of this case compare to the post- Friesen sentencing cases previously discussed. In brief review those cases were: a.

Friesen itself: (para. [51] to [59] above) (SCC) - four-year-old victim - accused acted in concert with another abuser - offence occurred in victim’s home - relatively youthful accused who had himself been the victim of childhood physical emotional and sexual abuse - guilty plea – but only in face of an overwhelming Crown case - expressions of remorse not genuine - Sentence: 6 years b.

Boucher : (para. [60]to [63] above) (ABCA) - accused committed more than 90 sexual assaults on a 14 year-old-girl who considered him a father figure over seven months - guilty plea - assaults involved penile vaginal penetration - Sentence: 6 years c. O : (para. [64] and [65] above (ABQB) - father sexually abused his 14-year-old daughter many times over about four months - abuse included penile vaginal penetration and threats - conviction after trial - Sentence: 14 years d.

Lemay (para. [66] ] to [69] above) (ABCA) - 35-year-old accused sexually interfered with 15-year-old daughter of his friend - sexual interference consisted of five instances over the course of five months - sexual interference involved digital penetration, forced fellatio, and attempted penile vaginal penetration - victim described the harm she suffered as including trust issues, depression and self-harm - accused was victim of sexual abuse as a child and suffered from depression, anxiety, PTSD and panic attacks – extensive history of self harm and suicide attempts - assessment of low to medium risk of sexual recidivism - guilty plea - Sentence: 4 years [ 83 ] EF’s sexual interference with AB appears less serious than the sexual interference committed by the offenders against their victims in all four of these cases.

Three of the four cases involved a guilty plea which is usually accepted as a very significant mitigating factor – though in one of the cases the guilty plea appears to have not mitigated significantly. The sentence in the one case that followed conviction at trial involved a very significant breach of a position of trust – that of a father to a daughter – but the 14-year sentence imposed seems very much of an outlier. [ 84 ] Lemay, in my view, is the post- Friesen Alberta case closest to the case before me. The sexual interference there was more

serious than in EF’s case, in that it occurred on multiple occasions and was in a situation with greater trust features. The mitigation features included a guilty plea and the accused’s own significant mental health problems. In my view, the total mitigating effect of those elements exceeds that of the mitigating factors in EF’s case including the Covid-19 point and the breach of EF’s Charter s 11(

b) point. [ 85 ] In my view, EF’s sentence for the sexual interference offence should be the same as that imposed by the ABCA in Lemay – four years. A sentence of that duration appropriately reflects the primary importance of the objectives of denunciation and deterrence over the other goals of sentencing. It also respects Parliament’s express will that sentences for sexual offences against children should be harsher than they have been in the past.

The Child Luring Offence [ 86 ] The moral blameworthiness involved in EF, a 48-year-old man, stalking a 15-year-old girl on an internet texting application for the purpose of luring her to meeting him for a sexual encounter is very significant. Like the sexual interference offence, it is aggravated by the fact that EF knew AB to be a troubled youth estranged from her parents. It is also aggravated by the fact that EF knew AB to be suffering some sort of mental health problems and that she was self-medicating with alcohol.

She was easy prey. [ 87 ] In my view, the extremely sexually explicit and depraved sexual content of the messages EF sent AB has some but not great aggravating effect. As Mr. Engel noted, the Crown did not proceed on the child pornography charges in the indictment. EF cannot be punished for offences of which he was not convicted. [ 88 ] It does not however mitigate the moral blameworthiness of EF’s offence that AB appears to have been willing, indeed enthusiastic, about engaging with EF in the prolonged text message communications by which EF accomplished the luring.

The attention EF paid to AB by engaging her in hours of text messaging, groomed her for their subsequent physical encounter – it led her to think, wrongly, that EF had some unselfish interest in her. [ 89 ] Only one of the “Sentencing Cases” cited by counsel and previously discussed involved a child luring conviction in a context where the luring lead to sexual interference – Lemay . There the ABCA upheld a trial sentence of 18 months on the child luring count. [ 90 ] Child luring was also one of the offences in Hajar .

In that decision the ABCA observed: (para. 155) Luring of a child is a serious offence because the Internet provides those intent on abusing children with access to them that would almost certainly be blocked in their own homes . . . Hajar’s use of the Internet required planning and deliberation.

The ease with which the offence can be committed and its prevalence and long reach are all factors which speak to the need for this Court to strongly discourage and denounce this modern criminality. [ 91 ] Also, in Hajar , the ABCA noted that a range of one to three years appeared to be emerging for child luring (para. 166). This, of course, was pre- Friesen .

The sentence imposed by the ABCA for child luring in Hajar where the accused had pleaded guilty, was 1 year. [ 92 ] In my view, for EF, a fit sentence for the child luring offence, given that he was convicted after trial, given the sentence in Hajar and given Friesen ’s admonitions that sentences for child sexual offences should be harsher than they have been in the past, is one year and a half. Totality [ 93 ] The sentence I impose for the sexual interference offence, four years, and the sentence I impose for the child luring offence, one year and a half, shall be served consecutively.

The total sentence is therefore five and a half years. [ 94 ] I have considered whether that total sentence is unduly long or harsh – whether it exceeds EF’s overall culpability. ( CC s 718.2(c)). I have concluded that it does not. Conclusion [ 95 ] EF, I sentence you on Count 7 of the indictment – for the offence of sexual interference to four years imprisonment. And I sentence you on Count 11 of the indictment – for the offence of child luring to one year and a half imprisonment. The sentences are to be served consecutively. Ancillary Orders [ 96 ] Mr. Nicholls sought, Mr.

Engel did not object to, and I make, the following ancillary orders: a. EF will provide a DNA sample as required by CC s 487.051(1); b. EF will be subject to a lifetime SOIRA order as required by CC s 490.012 and s 490.013(2.1); c. EF will be prohibited from possessing firearms for 10 years as required by CC s 109(1)(a); d. EF will be subject to an order under CC s 743.21 that he have no contact with AB while in custody; e. EF will be subject to an order under CC s 161(1)(

b) prohibiting him from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years for life. f. Property of EF seized in the investigation, a cell phone, shall be forfeited to the Crown.

Heard March 30 , 2021. Dated at Edmonton, Alberta this 9 th day of April, 2021. B.R. Burrows J.C.Q.B.A. Appearances: Keith Nicholls for the Crown Thomas M. Engel for the Accused _______________________________________________________ Correction of the Reasons for Sentence of The Honourable Mr. Justice B.R. Burrows _______________________________________________________ The reference to Charter 11(

b) in paragraph [77] has been corrected to 10(b). In appearances, Mr. Engels’ middle initial has been corrected to M.