R v EF, 2021 ABQB 639

Court of Queen’s Bench of Alberta Citation: R v EF, 2021 ABQB 639 Date: 20210813 Docket: 181399122Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - 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 By Court Order, information that could identify the Complainant who is referred to as CD in these Reasons must not be published, broadcast, or transmitted in any way.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. ______________________________________________________ Sentencing Decision of the Honourable Mr. Justice M. Kraus _______________________________________________________ 1. Introduction [ 1 ] EF [1] was charged in a one count Indictment involving one Complainant. The Indictment reads as follows:

EF stands charged that he, between the 1st day of October, 2018 and the 30th day of October, 2018, both dates inclusive, at or nearOkotoks, Alberta did, for a sexual purpose, unlawfully touch, directly or indirectly, with a part of the body or with an object, a part of thebody of CD, a person under the age of sixteen years, contrary to

section 151 of the Criminal Code of Canada. [2] The previous counts two and three in the Indictment were withdrawn by the Crown on November 5, 2020, prior to the jurytrial. [3] This matter proceeded to a jury trial from November 16, 2020 to November 20, 2020. EF was found guilty on November 20,2020. 2. Facts A. Circumstances of the Offence [4] The circumstances of the offence are as set out in the Findings of Facts made by the Court under s. 724 CC in Exhibit S-1. Exhibit S-1 reads as follows: 1. CD was less than 16 years old at the material time. More specifically, CD was 14 years old at the material time. 2.

CD is the daughter of EF. 3. EF intentionally touched CD, either directly or indirectly. More specifically, EF pinned CD’s hands above her head as she waslying on her back on a couch in EF’s living room. EF lifted up CD’s shirt with his free hand. CD was not wearing a bra. EF touchedCD’s breasts and squeezed her nipples. The touching took about a minute. 4. The touching by EF was for a sexual purpose. More specifically, EF’s hand and fingers touched CD’s breasts and nipples. [5] I will rely upon these facts which directly affect the sentence to be imposed in this case. B.

Circumstances of the Offender [6] The personal background of EF was mentioned at the trial and at the sentencing hearing. [7] EF is presently 50 years old and was 48 years old at the time of the offence. He worked for his parents’ company. He wasdivorced from GH. They have four children, namely CD, IJ, KL, and MN. At the time of the offence, EF shared parenting of the threeyoungest children on an alternating weekly basis with GH, while MN lived primarily with EF. [8] As background, EF was convicted of two counts of failing to comply with judicial interim release conditions on February 18,2021.

This resulted in a sentence of 30 days for each breach, concurrent. The breaches were breaches of release conditions related to thismatter as well as other matters for which he had outstanding charges. The breaches were subsequent in time to the incident resulting in aconviction in this matter. [9] EF was convicted on March 19, 2021 of sexual interference and luring (R v EF, 2021 ABQB 209) involving a differentcomplainant. On April 9, 2021, he was sentenced to 5.5 years of incarceration by Burrows J in R v EF, 2021 ABQB 272 (EF #2). Hehas appealed the conviction. The sentence has not been appealed.

He applied for judicial interim release pending the hearing of theappeal but bail was denied (R v EF, 2021 ABCA 159).

The incidents relating to that conviction were subsequent in time to the incidentresulting in a conviction in this matter. [10] The Crown and Defence agree that although EF has been convicted in these two other matters, I am to ignore these twoconvictions at this sentencing because the incidents resulting in these two convictions pre-dated the incident which resulted in aconviction in this matter: see R v Johnson (1998), (BC CA), 131 CCC (3d) 274 at para 18 (BCCA); R v Pete, 2019BCCA 244; R v Boutcher, [1998] OJ No 4842 (CA); R v Darby, 2016 ABQB 352 at para 140. [11] However, the Defence argues that it is appropriate to consider EF’s circumstances in Bowden Penitentiary and EdmontonRemand Centre (ERC) as relevant considerations for his sentencing.

In this regard, EF testified at the sentencing hearing about theconditions at Bowden Penitentiary and prior incarceration at ERC. [12] EF testified at the sentencing hearing that he was in quarantine for 3 weeks at Bowden Penitentiary following his admissionon April 26, 2021. He was also in quarantine in ERC prior to the sentencing hearing. Conditions in quarantine were that he was keptinside 23.5 hours out of 24 hours for 5 or 6 days and he was alone in a small cell with a tv and access to a telephone 10-15 minutes perday.

EF stated that the food was not very good, was delivered by trolley, and was eaten on the bunk in the cell. [13] In the fourth week on about May 27/28, 2021, EF was transferred into a different wing with a cell mate. There was an opentoilet in the cell. Nicorette gum was traded for access to a TV. He stated that food was obtained outside the cell and could be eaten at apicnic table. He had some trouble obtaining all of his medication on a timely basis: anti-depressants were supplied at a reduced level andno sleeping pills were provided. This lack of medication made him feel low and he even thought about suicide.

When he wanted to see adoctor, he had to fill out a request form and wait. His lawyer wrote a letter to the Warden to help him, but he received no response(Exhibit S-7). EF stated this is a huge change from the situation before his incarceration, when he could arrange to see a doctor in a dayor two. [14] EF also claims he had no access to programs at Bowden Penitentiary and is concerned there may not be proper programs. It is

not clear whether or not the lack of programs was attributable to measures designed to address the Covid-19 pandemic. The treatment of prisoners in institutions is an issue. However, there is a grievance process available to prisoners to address these concerns and this sentencing hearing is not the appropriate forum in which to determine any grievance. [ 15 ] As a result of this offence, EF has lost contact with his family, including CD. He misses his family. C. Victim impact statement [ 16 ] CD prepared a victim impact statement (Exhibit S-3).

Her mother, GH, also prepared a victim impact statement (Exhibit S- 2). Both victim impact statements were read out in the courtroom by the Crown. [ 17 ] CD reports that she initially blamed herself for the touching and felt disgusted. She felt hurt mentally, emotionally, and physically. The harm has occurred not only to her, but also to her relationship with her brothers and mother. She states she has been disowned by her paternal grandparents, who blame her for EF’ s incarceration and the family turmoil. She has missed out on activities with her father and family.

She has nightmares about what her father has done to her and that he has ruined her life in many ways. Eventually, however, she wants to see her father and, despite all the hurt, she still loves her father. [ 18 ] GH’s statement describes the hurt caused by EF to CD and the entire family. The impact is emotional, psychological, and financial. 3. Positions of the Parties [ 19 ] The Crown seeks a period of incarceration of 4 years. [ 20 ] The Crown and Defence agree that three mandatory ancillary orders must be ordered as follows: (

a) SOIRA Order to be made after further submissions are made by counsel (

b) DNA Order – s. 487.051(2) (

c) Weapons Prohibition – s. 109(1)(a) – 10 years for non-restricted firearms and life for prohibited and restricted firearms [ 21 ] In addition, the Crown seeks two discretionary ancillary Orders as follows: (

a) Section 161(b) – an Order to prohibit the Offender from any employment or volunteering in a capacity that would involve having responsibility for children under 16, for life (

b) Section 161(c) – an Order prohibiting the Offender from having contact with persons under 16, unless in the presence of a responsible adult. [ 22 ] The Defence proposed three alternative sentencing options: (

i) a sentence of 3 months incarceration concurrent with the existing sentence; (ii) a sentence of 3 months incarceration concurrent with the existing sentence, with one-year probation thereafter, or (iii) a period of probation of one year. [ 23 ] The Defence also opposes the discretionary orders sought by the Crown under s. 161. 4. Principles of Sentencing A. Objectives of Sentencing [ 24 ] The fundamental purpose of sentencing is to “contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more” of the objectives set out in s. 718 (

a) to (

f) of the Criminal Code : (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate the offender from society, where necessary; (

d) to assist in the rehabilitation of the offender; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in the offender. B. Proportionality [ 25 ] The sentence to be imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1).

[ 26 ] The Supreme Court of Canada explained the law in R v Ipeelee , 2012 SCC 13 at para 37 , [2012] 1 SCR 433 as follows: The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing -- the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code , the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction.

First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system.... [ 27 ] See also R v Parranto , 2019 ABCA 457 at para 27 . C. Post-Friesen era [ 28 ] Both counsel acknowledge that the leading case is now R v Friesen , 2020 SCC 9 , although each made divergent submissions about its implications.

To a large extent, counsel repeated the arguments they had made in EF #2 , which were summarized by Burrows J at paragraph 25 (Crown) and paragraphs 31-36 (Defence) of that decision, respectively. [ 29 ] The Defence is correct that the Friesen left intact the long-standing principle that the sentencing judge must craft a sentence that is individualized to the circumstances of the offence and the offender. [ 30 ] However, the Crown is correct that Friesen represents a paradigm shift with respect to sentencing for sexual offences against children.

This proposition has been repeatedly recognized by this Court ( EF #2 at para 50; R v Misay , 2021 ABQB 485 at para 31 ; R v Melrose , 2021 ABQB 73 at para 46 ; R v O , 2020 ABQB 497 at paras 21-38 , 48), our Court of Appeal ( R v Lemay , 2020 ABCA 365 ; R v Boucher , 2020 ABCA 208 ) , and courts across Canada ( R v Plehanov , 2020 BCCA 249 ; R v Alfred , 2021 BCCA 71 ; R v KNDW , 2020 MBCA 52 ; R v Abbasi , 2020 MBCA 119 ; R v Crane , 2021 PESC 1 ; and R c AC , 2021 QCCQ 4659 at paras 31-5 ) . That there has been a paradigm shift is no longer up for debate. [ 31 ] It is worth reviewing Friesen at length.

The SCC began by asserting (at para 5): …we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children.

Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large. [ 32 ] The SCC declared that protecting children from harm is the overarching objective of the criminalization of sexual activity with them (para 42), and that sentencing judges must properly understand the wrongfulness of sexual offences against children and the profound harm that they cause (at para 50).

The SCC declared (at para 76): Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers, and communities (see M. (C.A.) , at para. 80 ; R. v. Morrisey , 2000 SCC 39 , [2000] 2 S.C.R. 90 , at para. 35 ). We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children.

Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences.

We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case. [ 33 ] The SCC explained that s exual offences against children are especially wrongful because the offenders exploit the vulnerability of children (para 65). [ 34 ] The SCC cautioned that sexual interference with a child should not be treated as less serious than sexual assault of a child.

The SCC stressed the wrongfulness and harmfulness of sexual interference, stating (at para 75): In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. Accurately understanding both factors is key to imposing a proportionate sentence ( R. v. Nur , 2015 SCC 15 , [2015] 1 S.C.R. 773, at paras. 43-44 ). The wrongfulness and the harmfulness impact both the gravity of the offence and the degree of responsibility of the offender.

Taking the wrongfulness and harmfulness into account will ensure that the proportionality principle serves its function of “ensur[ing] that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused” ( Nasogaluak , at para. 42). [ 35 ] The SCC explained that physical contact of a sexual nature with a child is a wrongful act of physical and psychological violence, even if it is not accompanied by additional physical violence and does not result in physical or psychological injury (at para 77). [ 36 ] The SCC cautioned against the myth that harm to the victim depends on the type of sexual activity involved (at paras 120 and144): It is an error of law to treat sexual interference as less serious than sexual assault.

As stated above, Parliament has established the same maximum sentences for both sexual interference and sexual assault of a person under the age of 16. The elements of the offence are also similar, and a conviction for sexual assault of a child and for sexual interference with a child can frequently be supported on the same factual foundation ( R. v. M. (S.J.) , 2009 ONCA 244 , 247 O.A.C. 178, at para.8).

... Specifically, we would strongly caution courts against downgrading the wrongfulness of the offence or the harm to the victim where the sexually violent conduct does not involve penetration, fellatio, or cunnilingus, but instead touching or masturbation. There is no basis to assume, as some courts appear to have done, that sexual touching without penetration can be [ translation ] “relatively benign” (see R. v. Caron Barrette , 2018 QCCA 516 , 46 C.R. (7th) 400, at paras. 93-94 ).... [ 37 ] The SCC directed that s uch offences be punished more harshly than they have been in the past (paras 45 and 95 to 100).

The SCC indicated that 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 (para 114). [ 38 ] Finally, the SCC identified a number of specific considerations which govern the determination of a fit sentence. These factors are: (

a) the likelihood that the offender will reoffend (paras 122 to 124 ), (

b) the abuse of a position of trust or authority (paras 125 to 130 ), (

c) the duration and frequency of the sexual violence (paras 131 to 133 ), (

d) the age of the victim, recognizing that disproportionately low sentences were historically imposed in cases involving adolescents (paras 134 to 136 ), (

e) the degree of physical interference (paras 137 to 147 ), and (

f) participation by the victim (paras 148 to 154 ). D. Starting Point [ 39 ] The Alberta Court of Appeal in R v Hajar , 2016 ABCA 222 , set a starting point in Alberta for a major sexual interference at 3 years. The Court of Appeal defined “major sexual interference” as one 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” (at para 53). This starting point assumes (

i) no guilty plea, (ii) an offender with no record, and (iii) an offender of ordinary or average good character. [ 40 ] The Hajar starting point must be increased in circumstances involving the abuse of a trust relationship: R v Lemay , 2020 ABCA 365 at paras 52-3 .

In this context, see also the following authorities where the Alberta Court of Appeal set the starting point for a major sexual assault on a minor by a person in a position of trust at 4 years: R v DPH , 2019 ABCA 448 at para 19 ; R v BSM , 2011 ABCA 105 ; R v BL , 2011 ABCA 375 ; R v Archibald , 2012 ABCA 202 . [ 41 ] I note that a starting point sentence is not a minimum sentence but is simply a starting point, subject to application of all relevant considerations, which may result in the ultimate sentence being either higher or lower than the starting point sentence.

In other words, starting points (and sentencing ranges) are primarily guidelines, as opposed to hard and fast rules, from which courts may need to depart in order to achieve a proportionate sentence: Friesen at paras 37-8 ; R v Stewart , 2021 ABCA 79 at para 41 . [ 42 ] In EF #2 , at para 81, Burrows J noted that Friesen indicated that the Hajar starting point should be increased. I agree with this

interpretation. In Friesen at paras 115-118 , the SCC had noted that the Hajar starting point for sexual interference is the same as the 3 year starting point for sexual assault against adults set out in R v Arcand , 2010 ABCA 363 The SCC then directed appellate courts to revise starting poi nts to ensure that offences against children receive stronger sanction than offences against adults . E.

Aggravating and Mitigating Factors [ 43 ] The sentence must be “increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender” (s.718.2(a)). [ 44 ] Aggravating factors which are advanced for the purpose of supporting a lengthier sentence must be proven beyond a reasonable doubt ( R v Garner . [1982] SCR 368 at 415-416), while all other facts are tested on a balance of probabilities ( R v Ferguson , 2008 SCC 6 at para 18 , [2008] 1 SCR 96).

(1) Aggravating Factors [ 45 ] The Crown submits that there are several aggravating factors to consider. [ 46 ] First, CD was a person under the age of 18 at the material time. Specifically, she was 14 years old at the time of the offence. She was a child. This is an aggravating factor which is specifically statutorily referred to in s. 718.2(ii.1) and must be considered. [ 47 ] Second, there is a significant harmful impact on CD, which harm is both actual and potential.

This is the crux of Friesen at para 76 . [ 48 ] Third, and most importantly, the Crown argues that the most aggravating factor is that EF stood in a position of trust to CD as her father. This aggravating factor is specifically statutorily referred to in s. 718.2(iii) and must be taken into account.

[ 49 ] The Crown made a point of emphasizing that there is a flexible continuum of people in trust ranging from teachers, coaches, employer, babysitters, in loco parentis parents, and some others that have in different cases from time to time been held to be standing in a position of trust. The Crown states that EF, as the biological father of CD who had shared residential care of CD, stood in the ultimate position of trust. The sexual interference took place in EF’s home during EF’s parenting time. This is a home where CD was entitled to feel safe. EF is the person with whom CD should have felt the most safe.

The victim was from the same family – this aggravated the trauma suffered by the family as a whole: see R v Griffen, 2019 ABCA 46 . The Alberta Court of Appeal has repeatedly declared that cases of child abuse by a person in a position of trust such as a parent require a stern denunciatory sentence; R v C(AB) , 1991 ABCA 337 at para 19 ; R v F(MG) , 2010 ABCA 102 at para 7 . [ 50 ] A further aggravating factor is that actual physical force was used to impose EF’s sexual interference on CD. EF used one hand to hold together CD’s hands and pin them over her head as she was lying on her back on the couch.

This was not a simple grope. There was force used and the touching of the breasts and squeezing of the nipples occurred for about a minute. The use of physical force to overpower or secure the submission of the child victim is aggravating: Hajar at paras 113-116 . [ 51 ] The Crown submits that EF has a criminal record, but that the record is dated and unrelated.

There were convictions going back to 1989 for driving with more than the legal amount of alcohol in the blood under s. 253(B), 1990 for obstruction under s. 129(A), 1995 for possession of property obtained by crime under s. 355(B), and 1999 for failure to appear under s. 145(5). This is a dated record and the convictions are not related to the conviction in this matter.

In the circumstances, EF’s record is not an aggravating factor. [ 52 ] The Crown concedes that I cannot make use of the other convictions in 2021 (30 days for the failing to comply with judicial interim release conditions and 5.5 years in EF#2 for the other sexual offences) in this sentencing as part of EF’s record. These sentences are therefore not an aggravating factor.

(2) Mitigating Factors [ 53 ] The Crown argues that there are no mitigating factors. [ 54 ] In contrast, the Defence raises factors which it alleges, in all the circumstances, mitigate the sentence. [ 55 ] I begin by noting a couple of neutral factors. First, every accused has the right to have their day in Court. The lack of a guilty plea is not an aggravating factor, but rather may be understood as the absence of a mitigating factor. [ 56 ] Second, EF has a prior criminal record, but it is dated and convictions are unrelated to this matter.

Effectively, EF is being treated as if he has no prior record in this sentencing. The caselaw suggests that the absence of a criminal record can be a mitigating factor insofar as it reinforces the argument that the accused is unlikely to reoffend and that there are positive prospects for rehabilitation: see R v Hammadieh , 2008 ABCA 169 at para 11 ; R v Collins , 1995 ABCA 392 at para 9 ; R v Stewart , 1993 ABCA 252 at para 25 ; see also Ruby, et al, Sentencing , 10th ed . (Toronto: LexisNexis Canada, 202) at § 8.16.

However, the lack of a criminal record is not a mitigating factor in itself: R v Tettersell , 2012 ABCA 57 at para 7 ; R v MGF , 2010 ABCA 102 at para 7 . In this case, which involves a sexual offence against the Offender’s daughter, I regard the lack of a related criminal record as a neutral factor. [ 57 ] In support of its position, the Defence submitted evidence from EF’s psychologist and physician (Exhibit S-8). [ 58 ] The psychologist, Dr. Brad Isaak, prepared a letter after three one hour counselling sessions with EF. Dr.

Isaak indicates that EF has recognized that he has caused emotional damage to many people by his actions, that he has gained insight about himself and his relationships, and that he is committed to a positive change process. I note that Dr. Isaak’s letter does not specifically mention CD and appears to be oriented toward the sentencing hearing before Burrows J in EF #2 . Regardless, I am satisfied from the letter and EF’s viva voce evidence at the sentencing hearing that his present expression of remorse is genuine. [ 59 ] Remorse, if genuine, can be a mitigating factor which affects the sentence.

As the SCC explained i n Friesen , at para 165 , remorse is a relevant mitigating factor that gains significance when it is paired with insight and some indication that the offender has “come to realize the gravity of the conduct, and as a result has achieved a change of attitude or imposed some self-discipline which significantly reduces the likelihood of further offending.” [ 60 ] A lthough there is evidence of EF’s remorse, I am not convinced it is paired with insight into the gravity of his offence and its impact on CD.

EF’s remorse, although genuine, appears to be focused as much on the consequences of what he has done to himself as it is with the harm he has done to CD. [ 61 ] Another potential mitigating factor submitted by the Defence is that EF has a low risk of re-offending. In his report, Dr. Isaak states that it is his impression that EF is not a danger to the community. I interpret this to mean that when EF is released from custody, he will likely pose little risk to society. Dr.

Isaak also states that jail will not serve any rehabilitative purpose. [ 62 ] An offender’s positive potential for rehabilitation “should work to his benefit on sentencing” and would reduce the need for individual deterrence: R v Gouliaeff , 2012 ONCA 690 at para 12 ; R v Spina , 1997 ABCA 235 . [ 63 ] However, I do not draw any significant conclusions from Dr. Isaak’s letter as it is not a full assessment, particularly not with respect to this offence. [ 64 ] EF’s physician, Dr. Simon James, also speaks about his concerns with EF’s physical and mental health if he was incarcerated.

EF has asthma as an underlying condition for Covid 19. He suffers from anxiety and depression, for which he has been prescribed medication. He also suffers from sleep issues and has been prescribed medication for this as well. Dr. James also has concerns about EF’s mental health from his periods of incarceration and isolation, including suicidal ideation.

These matters were brought before Burrows J at his sentencing hearing and are brought back again before the Court at this sentencing. [ 65 ] The problems to date with incarceration have nothing to do with this matter but Defence counsel asks me to project into the

future after EF is sentenced. EF may be subject to isolation as a result of Covid-19 and he will lose ready access to a family physician. He will have more difficulty obtaining medical attention than in the same way as if he was outside of jail, he may not receive sleepingpills, and he may experience delay in getting his anti-depressant medication. [66] The ill health of an offender is a potentially mitigating consideration.

For an offender who suffers from a serious physicalillness, a term of imprisonment that might otherwise be a proportional sentence may have a disproportionate adverse impact and therebywarrant a reduced or non-custodial sentence: R v TLB, 2007 ABCA 61 at para 34; R v ME, 2012 ONSC 1078 at para 58. However, thefact of illness or significant physical challenge does not, by itself, necessitate punishment deviating from the punishment otherwiseproportional to the gravity of the offence and the degree of blameworthiness of the offender: R v Myette, 2013 ABCA 371 at paras 35-37.

In order to establish that an offender’s health warrants mitigating considerations, the evidence must support the conclusion that thosephysical challenges cannot be adequately addressed by the correctional authorities: R v JAS, 2019 ABCA 376 at para 20; R vDrabinsky, 2011 ONCA 582 at para 170, leave to appeal refused, (SCC). Dr.

James’ letter falls far short of meetingthis threshold. [67] I note that in EF #2, at para 79, where these same arguments had been made previously, Burrows J accepted the Defencesubmission that the ongoing Covid-19 pandemic and the consequences it has for inmates in federal penitentiaries will make EF’ssentence harsher that it would otherwise be. Accordingly, Burrows J indicated that this should be reflected in the sentence. However, inR v Misay, 2021 ABQB 485, Renke J declined to factor Covid-19 into the sentence since (

i) no evidence had been submitted aboutcurrent pandemic conditions in Alberta penal institutions or federal penal institutions and (ii) no evidence had been submitted that theoffender in that case was particularly susceptible to Covid-19. The courts can take judicial notice of Covid-19, and its impact onCanadians and particularly penal institutions: R v Morgan, 2020 ONCA 279 at para 8. In R v Robinson, 2020 ABCA 222 at para 13, theAlberta Court of Appeal recently addressed the situation of a vulnerable inmate at Bowden Penitentiary and the ongoing Covid-19pandemic.

The Court noted that there was no evidence of the presence of Covid-19 at the institution and stated that there was no reasonto conclude that the authorities could not adequately respond to the pandemic and safeguard those inmates for whom it is responsible (atpara 13). In my view, the Covid-19 situation is evolving and the Defence has failed to present compelling evidence regarding the currentsituation in correctional facilities. Nonetheless, like Burrows J, I accept that EF’s asthma renders him particularly susceptible to Covid-19.

As such, this is a mitigating factor, but its impact is not substantial. [68] The Defence also submitted favourable character letters from three individuals and two family members (Exhibit S-8). All ofthese letters, except the May 27, 2021 letter from EF’s aunt, were also exhibits in the sentencing hearing before Burrows J in EF #2. Ingeneral, the letters speak about how “out of character” the incidents are for EF and how shocking it was for the references to hear aboutthe incidents. They speak about how EF is a good person, a good family person, and how he contributes to the well being of others in thecommunity.

In addition, each reference found something positive to say about EF: he is a good family person, helps people, is kind andcaring, takes care of his children, has a strong relationship with his children, contributes positively to the community at large includingthe underprivileged, engages in learning and other activities with the children at school, and is a wonderful father who loves his children. [69] I note that the authors of the character letters, apart from EF’s aunt, were only aware of EF’s conviction on the offencesbefore Burrows J but not of the conviction by the jury in this matter.

These references were not asked whether this subsequent convictionhad changed their opinion. [70] The previous “good character” of an offender has long been accepted as a potential mitigating factor on sentence. However, ithas also been recognized that previous good character means little for persons who engage in child sex offences: R v M(BS), 2011ABCA 105 at para 16; Arcand; R v M(G) (1992), (ON CA), 11 OR (3d) 225 at 232, 77 CCC (3d) 310 (CA).

Theseoffences are committed in secret and thus will not be reflected in the offender’s reputation in his family and community. [71] I find that the good character evidence offers little probative value with respect to the proper sentence to be imposed for asexual offence committed by EF against his daughter. [72] In this case, I conclude that the aggravating factors far out weigh the mitigating factors. F. Parity [73] The principle of parity in s. 718.2(

b) mandates that a “sentence should be similar to sentences imposed on similar offenders forsimilar offences committed in similar circumstances”: Friesen at paras 31-33. [74] In R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089, the SCC stated (at para 58): ... although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstancesby an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highlyindividualized exercise that goes beyond a purely mathematical calculation.

It involves a variety of factors that are difficult to define withprecision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have beenimposed in the past for a similar crime, is not demonstrably unfit.

Once again, everything depends on the gravity of the offence, theoffender’s degree of responsibility and the specific circumstances of each case.... [75] The issue here is what is an appropriate sentence for sexual interference in this case. [76] Counsel provided several cases to the Court for consideration. [77] The Crown cases, except for Hajar, are post Friesen cases. The Crown argues that Friesen has introduced a paradigm shiftsuch that sentencing cases prior to Friesen are of limited utility and that the Court must start afresh in determining a fit and propersentence.

The Crown states that Friesen emphasizes the importance of denunciation and deterrence and abhorrence of violence tochildren. The focus must be on the harm to children and society’s changing repugnance to harm to children.

[78] A

summary of the Crown cases is as follows: • Hajar: the sentence was notionally increased to 2.5 years for an offender who had a 14 year old female child perform oral sex on himplus one year for luring. • R v O, 2020 ABQB 497: a sentence of 14 years was imposed on an offender who had repeatedly sexually abused his daughter. • Lemay: the Court of Appeal declared that the trial judge had failed to take into account the evolution of society’s views regardingsexual offences against children and the offenders’ abuse of his position of trust.

The sentence for sexual interference was increased from2.5 years to 4 years (and the global sentence from 3.5 to 5.5 years). The offender had digitally penetrated the complainant, had herperform oral sex on him, and attempted vaginal intercourse. [79] The Defence provided sentencing cases, almost all of which predate Friesen. The Defence argues that pre-Friesen sentencingdecisions are still relevant. [80] A

summary of the Defence cases is as follows: • R v Ford, 2019 ABCA 87: the 1 year minimum sentence for sexual interference was struck down. The offender was 20 years old andof limited cognitive ability. He had intercourse with a 13 year old complainant. The Court of Appeal found the offender’s moralculpability to be greatly diminished by his disabilities. The Court would have substituted a 9 month sentence instead of a 6 monthsentence, but he was already out on probation and complying with the conditions of his probation, so the appeal was dismissed.

This caseis distinguishable because EF does not have any serious disabilities which would greatly diminish his moral culpability. • R v DM, 2021 BCSC 379: the mandatory minimum for sexual exploitation was struck down. The offender received 90 daysintermittent for 4 incidents against his teenage daughter including: flicking a nipple, intimate massage, cupping or jiggling thecomplainant’s breasts, patting her buttocks, and poking his erect penis against her buttocks.

I also note that the Crown was seeking asentence of 12 to 18 months. • R v JP, 2019 ONSC 7047: the offender was sentenced to 60 days intermittent, plus 2 years of probation for a one time sexual touchingof his step-daughter’s buttocks. • R v JM, 2012 BCPC 530 , 2012 BCPC 0530: the offender received 90 days intermittent for touching his young daughter’svagina 3-5 times over the course of about a month. • R v Chrispen, 2009 SKCA 63: the offender received a 9 month conditional sentence for touching the 18 year old complainant’s breastover clothing. • R v Toro, , [2008] OJ No 834 (OntSC): the offender received 30 days imprisonment to be served in the community(house arrest) for kissing the complainant and touching her breasts over her clothes.

I note that the Court rejected a joint submission of asuspended sentence. • R v Tanner, 2010 NSSC 82: the offender was sentenced to a 1 year suspended sentence for grabbing the breast of a 21 year oldcomplainant. [81] The Defence also cites several cases for the proposition that the sentence cannot be crushing: R v Mariarty, 2016 ABPC 25 atpara 69; R v Attia, 2020 ABQB 805 at para 5; R v Shivak, 2021 ABQB 72.

However, the 4 years being sought by the Crown in thismatter is far shorter than the 11 years that had been sought by the Crown before Burrows J in EF #2. [82] I note a number of other potentially relevant sexual interference sentencing decisions, although these all pre-date Friesen: • R v JLM, 2016 ABPC 285: a 6 month jail term was imposed on the offender who sexually assaulted his 16 year old step-daughter.There were approximately 15 incidents where the offender touched the victim’s breasts (over and under her clothing) and tried reachinginto her pants. • R v K(C), 2016 ONCA 6: a 6 month sentence was imposed for sexual interference on the offender who entered the room where thevictim was watching television, pinned her down and removed her pants and underwear and kissed her vagina, and then kissed herbreasts and lips. • R v ML, 2016 ONSC 7082: a 9 month sentence was imposed on the offender who touched and squeezed the bare breasts of his 15 yearold step-daughter on one occasion. • R v Sayers, 2015 ABCA 21: a 4 year sentence was upheld for the offender who touched the breasts and vagina of his best friend’syoung daughter at least 8 times over 4 years. • R v ARH, [2019] NJ No 243 (ProvCt): a 2 year sentence was imposed on the offender who touched his step-daughter’s breasts andvagina 6 times over 5 years. • R v Klassen, 2014 MBQB 18: a 1 year sentence was imposed for the offender who touched his 14 year old niece’s breasts and brushedhis hand against her vagina while making sexualized comments. • R v Dowd, 2019 MBCA 80: a 1 year sentence was upheld for the offender who touched the 9 year old complainant’s vagina and breast. • R v DS, 2021 ONSC 3972: a 15 month sentence was imposed for the offender referred to as an uncle, who kissed and fondled his 13years old victim’s breasts on several occasions.

• R v LSN, 2020 BCCA 109: the offender twice touched his 11 year old stepdaughter’s breast and once fondled her vagina withoutpenetration. The Court of Appeal recognized the offender’s exceptional circumstances but held that a suspended sentence was unfit.

TheCourt acceded to the Crown’s suggestion of imprisonment for a term of 2 years less a day, but noted it was at the bottom end of theappropriate range. [83] In R v JED, 2018 MBCA 123, the Manitoba Court of Appeal reviewed numerous authorities and concluded, in a pre-Friesendecision, as follows (at para 66): These cases appear to establish a range of sentence between nine months and three and one-half years of incarceration forsexually fondling a child’s body, breasts and/or genitals, without penetration, where the offender has no criminal record.

Lowersentences tend to take into account mitigating circumstances such as poor health or very brief touching, however, even one-time touchingoften results in a sentence of around one year. Longer sentences seem to reflect periods of inappropriate touching behaviour over alonger period of time or where, similar to Sidwell, violence, grooming or threats are involved in addition to more grievous intrusions tothe child’s sexual integrity.

Although it is an older case, attention should be particularly paid to the Supreme Court of Canada’s decisionin RNS [R v RNS, 2000 SCC 7], which suggested a range of 18 months to two years for long-term fondling of a child by a person in aposition of trust, absent exceptional mitigating circumstances. [84] The principle of parity is not absolute and cannot divert attention from the governing principles, such as the nature andseriousness of the offence and the individual characteristics of the offender.

Each sentence must be individualised and must be decidedbased on its own facts after taking into account all relevant sentencing principles. This does not mean that the sentence in this case mustbe identical to another case, but the Court must bear in mind the principle of parity and have regard to the cases which have a longersentence and cases which have a shorter sentence. [85] Authorities that predate Friesen may well be inappropriate or of limited precedential value: R v Alfred, 2021 BCCA 71 atpara 33.

The pre-Friesen authorities submitted by the Defence illustrate the SCC’s statement that sentencing courts had not alwaysproperly taken into account the need to protect complainants from harm and society’s increasing revulsion against child sex offences. Atthe same time, the authorities submitted by the Crown are clearly distinguishable since they involve much more serious and sustainedviolations of the complainants’ integrity.

The authorities cited above by the Court predate Friesen and generally seem to reflect at leastpartially the evolution of society’s attitude against child sex offences and the need to protect victims from harm. [86] I note that in the Manitoba Court of Appeal’s decision in JED, the range of sentences for the sexual touching of a child’sbreasts and/or genitals, without penetration, where the offender has no criminal record, is between 9 and 40 months. However, I ammindful that this decision predates Friesen and that in Friesen the SCC directed that sentences should be increased.

Pre-trial Credit & Conditions of Incarceration [87] The Defence argues that some form of credit should be given to EF for the strict bail conditions he was under. The Defenceprovides no authority for this proposition. [88] The Crown responds that the bail conditions were strict because of the nature of the offences, multiple offences in the originalIndictment, and EF’s breaches of judicial interim release conditions.

Accordingly, the Crown argues that the strict bail conditions do notwarrant any form of credit. [89] It is clear that time spent under stringent bail conditions can be taken into account as a relevant mitigating circumstance andcan be treated as akin to custody: R v Ewanchuk, 2002 ABCA 95 leave to appeal denied [2002] SCCA No 469; R v Lau, 2004 ABCA408at para 15; R v Spencer (2004), , 186 CCC (3d) 181, 22 CR (6th) 63 (OntCA). However, to put it simply, “bail isnot jail”.

No specific mathematical deduction of credit attaches to such conditions: R v Beaver, 2021 ABCA 227 at para 18; R vHilderman, 2005 ABCA 249 at para 20. Indeed, a sentencing judge may give little or no credit for restrictive release conditions: Beaverat para 18; R v Hoelscher, 2017 ABCA 406at para 12; R v Downes, at para 33, 205 CCC (3d) 488, 37 CR (6th) 46(OntCA). [90] Exhibit S-4 is a bundle of release documents. More specifically, two Recognizances and three Consent Orders. [91] The first Recognizance is dated November 15, 2018.

It contains provisions, inter alia, requiring EF to be supervised by hisbail supervisor, to have no contact with CD, to not possess weapons, to not be alone with a person under the age of 16 years unlessauthorized by the bail supervisor or in the presence of a responsible adult, and to not be employed or volunteer where he would be in aposition of trust over any person under the age of 18 years. [92] The second Recognizance is dated July 5, 2019 and required EF to post a bail of $20,000 no cash surety in the name of hisparents, to reside with his parents, to remain under the supervision of his bail supervisor, to not contact CD or another specified person, tonot be alone with a person under the age of 16 years, to not be employed or volunteer where he would be in a position of trust over anyperson under the age of 16 years, to not be found in any public place where it is reasonably expected that persons under the age of 16may gather, to not access the internet except for work purposes at work, to surrender his cell phone and passport, to allow entry intoparents’ residence on demand by a peace office if his parents are away, to not attend outside of his parent’s city of residence except forwork, medical appointment, or court, and curfew from 9 p.m. to 5 a.m. [93] The second Recognizance was as a result of an alleged breach of the first Recognizance, namely that he did not remain morethan 100 metres away from CD.

The stricter release conditions were imposed as a result of this alleged breach. EF ended up pleadingguilty to this breach before Rothwell J on February 18, 2021, as mentioned above. [94] The October 17, 2019 Consent Order for Variation of Judicial Interim Release allowed, inter alia, EF to be outside from hisparent’s city of residence for work purposes in the area of Edmonton and south of Edmonton, and for appointments with his lawyer,medical appointments or to attend Court in Edmonton or Drumheller on receiving written approval from the bail supervisor.

[ 95 ] These conditions allowed EF to attend Court in Drumheller where he faced other charges and allowed him to visit his lawyer in Edmonton. [ 96 ] The December 13, 2019 Consent Order for Variation of Judicial Interim Release allowed EF to travel to Edmonton or Drumheller the day before to attend Court and to stay there until Court finished.

There is nothing more restrictive in this Order. [ 97 ] The September 21, 2020 Order for Variation of Judicial Interim Release deleted the requirement of the 9 p.m. to 5 a.m. curfew. [ 98 ] In my view, there is no principled basis to give credit to EF for the strictness of his pre-trial bail conditions. The conditions for his release in the first Recognizance were reasonable and appropriate. Stricter bail conditions were imposed when EF breached the original Recognizance and was charged with other matters. Variations were subsequently granted.

EF’s ability to have social interactions with others and engage in leisure activities were obviously hampered. Nonetheless, the restrictions in this case were substantially less onerous than jail. Ultimately, EF’s bail in this matter was revoked when he was convicted by Burrows J on March 19, 2021. In all the circumstances, it is not appropriate to provide a credit to EF in this matter for his bail conditions. [ 99 ] Credit for pre-trial custody is not an issue in this sentencing because EF was out on bail in this matter.

EF commenced serving time when his bail was revoked by Burrows J at his conviction on March 19, 2021. Defence counsel is not seeking any credit for time in pre-trial custody. This position is well-founded since a sentencing judge cannot take into account time spent in custody on other offences when determining remand credit under s. 719(3) of the Criminal Code . The law was summarized in R v Adam , 2019 ABCA 225 at para 28 : Section 719(3) of the Criminal Code provides that “a court may take into account any time spent in custody by the person as a result of the offence ” (emphasis added). A plain reading of this

section suggests that Mr. Adam cannot be credited with pre-trial custody for time served on another, unrelated charge: see R v Lau , 2004 ABCA 408 at para 18 ; R v Dias , 2010 ABCA 382 at para 44 ; R v Wilson , 2008 ONCA 510 at para 24 . Section 719(3) of the Criminal Code provides that “a court may take into account any time spent in custody by the person as a result of the offence ” (emphasis added). A plain reading of this

section suggests that Mr. Adam cannot be credited with pre-trial custody for time served on another, unrelated charge: see R v Lau , 2004 ABCA 408 at para 18 ; R v Dias , 2010 ABCA 382 at para 44 ; R v Wilson , 2008 ONCA 510 at para 24. [ 100 ] However, the Defence argues that EF’s circumstances of being in Bowden Penitentiary and previously at ERC (including being in quarantine and isolation) should be considered as part of the individualized sentencing in this case.

Although EF was in these institutions as result of other convictions and sentence, the Defence argues that the conditions at Bowden Penitentiary should be considered as part of the circumstances of his sentencing. In particular, EF’s vulnerability to Covid-19 and his other medical conditions make his experience of incarceration harsher than that of other offenders. Likewise, the authorities’ steps to mitigate the risk of Covid-19 in their institutions had a deleterious impact on EF.

Finally, EF points to the difficulty he had in obtaining his medications and accessing a physician. [ 101 ] I note that some authorities suggest that the fact that an offender is serving time (and presumably the conditions under which the offender is serving that time) on unrelated charges can be considered in a limited way in determining a fit sentence: R v Pammett , 2016 ONCA 979 at para 27 ; Wilson at para 46 ; Pete at para 75 .

As far as I am aware, this line of reasoning has not been adopted in any reported case in Alberta and it has not been applied to sexual offences in Alberta. [ 102 ] Further, the actual and peculiar impact of a sentence on an offender may be taken into account: R v Morrisey , 2000 SCC 39 at para 41 , [2000] 2 SCR 90. In particular, examining the collateral consequences of incarceration on an offender enables a sentencing judge to consider all of the relevant circumstances: R v Suter , 2018 SCC 34 at paras 47-59 ; R v Pham , 2013 SCC 15 at paras 11-12 ; R v Gittens , 2019 ABCA 406 at para 42 .

Collateral consequences do not relate to the gravity of the offence or the level of responsibility of the offender, but rather speak to the personal circumstances of the offender.

But c ollateral consequences cannot be used to reduce a sentence to the point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender. [ 103 ] In Pham , the SCC cited with approval the following passage from Professor Allan Manson, The Law of Sentencing (2001), p.136 (at para 12): As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation. . .

The mitigating effect of indirect consequences must be considered in relation both to future re-integration and to the nature of the offence. Burdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel. Here, one can include loss of financial or social support. People lose jobs; families are disrupted; sources of assistance disappear.

Notwithstanding a need for denunciation, indirect consequences which arise from stigmatization cannot be isolated from the sentencing matrix if they will have bearing on the offender’s ability to live productively in the community. The mitigation will depend on weighing these obstacles against the degree of denunciation appropriate to the offence. [Emphasis added in Pham .] [ 104 ] There seems to be little doubt that EF’s vulnerability to the risk of exposure to Covid-19 while incarcerated constitutes a collateral consequence: R v Morgan , 2020 ONCA 279 at para 9 ; R v Dawson , 2021 NSCA 29 at paras 101-2 .

It also seems indisputable that the measures enacted to prevent the spread of Covid-19 in correctional institutions have had significant impacts on inmates and this has been recognized in enhanced pre-trial credit (see R v Cardinal , 2020 ABCA 376 ).

Nonetheless, the Covid-19 pandemic does not justify courts to reduce sentences below what is fit: R v Lariviere , 2020 ONCA 324 at paras 16-17 ; Dawson at para 104 . [ 105 ] In my view, it is appropriate in all the circumstances of this case to weigh the circumstances of EF’s incarceration in Bowden Penitentiary (and previously at ERC), including the repeated periods of quarantine and isolation, EF’s vulnerability to Covid-19, as well as his difficulty in obtaining his medications and accessing a physician, as part of the overall sentence to meet the application of the principle of individualized sentencing.

Accordingly, I am prepared to give EF 4 months’ credit from his total sentence.

5. A Fit Sentence [106] The Defence seems to concede that some jail time is appropriate to address the nature of this offence: two of the threesentencing options proposed by the Defence included a term of 3 months incarceration. In light of Friesen, and the principles alreadydiscussed, it is undeniable that this offence warrants a custodial sentence. How long should that period of imprisonment be?

The sentencemust be proportionate to the gravity of the offence and EF’s degree of responsibility. [107] In R v RBL, 2005 ABPC 63, the Court cautioned (at para 42): Sexual abuse of young children causes a visceral reaction of revulsion towards the offender in caring people and a caring society. Because of that passionate and understandable human reaction, sentencing is particularly challenging.

It is important to temper theimpassioned reaction, to recognize the humanity of the offender, to sentence in a way that expresses society’s outrage without crushingall hope and without tipping the balance so far as to become vengeful. [108] Although this comment was made in the context of a pattern of horrific sexual assaults on the offender’s young children, it isapplicable in all cases of sexual offences against children by a person in a position of trust such as EF. Gravity [109] Gravity of the offence is a concept which is directed to what the offender did wrong.

It includes two components: (1) the harm or likely harm to the victim; and (2) the harm or likely harm to society and its values. [110] Prior to Friesen, the Supreme Court of Canada had taken judicial notice of the psychological effects on a victim of sexualassault: R v McCraw, (SCC), [1991] 3 SCR 72 and stated in R v JA 2011 SCC 28 at para 63 that “even mild non-consensual touching of a sexual nature can have profound implications for the complainant.” [111] Direct evidence of harm is not a prerequisite to establishing a serious sexual offence.

Instead, what is required is a finding ofcontemptuous disregard for the feelings and personal integrity of the victim, sexual activity of a sort or intensity such that a reasonableperson would know beforehand that the victim likely would suffer lasting emotional or psychological injury, and that the victim hassuffered notable psychological or emotional harm which may be inferred from the very nature of the assault: Sayers. [112] With respect to a child, the Court of Appeal of Alberta stated in R v S(WB) and R v P(M), , 73 CCC (3d) 530 at 535, 15 CR (4th) 324 (ABCA): When a man has assaulted a child for his sexual gratification, then, even if no long-lasting physical trauma is suffered by the child, it isreasonable to assume that the child may have suffered emotional trauma, the effects of which may survive longer than bruises or brokenbones, and may even be permanent. [113] See also R v WS, 1992 ABCA 221 at para 6. [114] In Friesen, the SCC commented about the harm to complainants and their families in cases of sexual offences (at para 60): Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers.

Because muchsexual violence against children is committed by a family member, the violence is often accompanied by breach of a trust relationship (R.v. D.R.W., 2012 BCCA 454, 330 B.C.A.C. 18, at para. 41). If a parent or family member is the perpetrator of the sexual violence, theother parent or family members may cause further trauma by taking the side of the perpetrator and disbelieving the victim (see “The‘Statutory Rape’ Myth”, at p. 292). [115] The true and lasting effects on CD caused by EF’s actions are not fully known at present.

It is clear from the Victim ImpactStatements that EF’s actions have caused tremendous and most likely irreparable harm to his family. CD feels disgusted and hasnightmares about what EF did. She in turn has feelings of both anger and love toward EF. CD will have to deal with the psychologicaland emotional effects of this incident for the rest of her life. The impact this incident will have on CD’s social life, education, and abilityto form healthy loving relationships in the future is not known. CD also initially blamed herself for the offence.

This is a view that herbrothers and paternal grandparents continue to hold, blaming her for EF’s prosecution and conviction. CD, as well as GH, will have todeal with the intra-family discord and destruction of lifelong relationships for the rest of their lives. In sum, EF harmed CD’s dignity,bodily and sexual integrity, and CD’s relationship with some of the rest of her family. [116] Persons who are in a position of trust in relation to children owe a duty to protect those children from harm.

A sexual offencecommitted in the family home by a biological father with shared residential care of a child constitutes a grave breach of trust. Theconduct of EF, who committed sexual interference with his adolescent daughter, caused harm to society and its values. [117] In sum, the gravity of this offence is substantial. Moral Blameworthiness [118] The degree of responsibility of the offender relates to the moral culpability of the offender and the extent to which the offenderactually intended the consequences of his actions.

It is necessary to consider any specific aspects of the Offender’s conduct orbackground that tends to increase or decrease his personal responsibility for the offence.

[ 119 ] As indicated above, in Friesen , the SCC stressed the wrongfulness of sexual offences against children. Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware of the profound physical, psychological, and emotional harm that their actions may cause the child ( Friesen at para 88 ). Further, in committing sexual violence against a child, the offender is treating the child as an object and disregarding the child’s human dignity ( Friesen at para 89 ).

Finally, the sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable ( Friesen at para 90 ). [ 120 ] In my view, EF’s sexual exploitation of CD is a crime demonstrating the worst of intentions ( Friesen at para 90 ) . [ 121 ] The fact that the incident consisted of touching for a brief period of time does not lessen EF’s moral responsibility. First, his actions involved physical force in pinning CD down and subjecting her to his actions.

Second, as discussed above in relation to the gravity of the offence, the SCC in Friesen cautioned against a hierarchy of physical acts – sexual touching is no less morally blameworthy than digital penetration or intercourse. Further, I cannot regard this incident as an isolated lapse in judgment. Instead, the exploitation of CD for his own gratification was inherently predatory. EF ignored the profound psychological and emotional harm that his action would cause to CD.

Finally, the fact that EF abused his position of trust toward his own daughter sets his conduct with the highest degree of moral culpability ( C(AB) ; R v F(MG) ). [ 122 ] In one brief instant, EF destroyed CD’s sense of safety with her father, security in her own home, and her sense of normality.

EF was expected to protect his daughter, not to subject her to his own sexual gratification. [ 123 ] As mentioned before, I am not convinced that EF has full insight into the profound impacts that this admittedly brief incident has had and will continue to have on CD and the rest of his family. [ 124 ] There is nothing in EF’s conduct or background that tends to decrease his personal responsibility for this offence.

Conclusion [ 125 ] In this case, the paramount objectives are denunciation and deterrence as confirmed by the Supreme Court of Canada in Friesen . [ 126 ] As indicated in Hajar , some acts are easily classified as major sexual interferences. In Hajar , at paras 10 and 53 , the Alberta Court of Appeal provided a non-exhaustive list of acts of “major sexual interference”, including but not limited to vaginal intercourse, anal intercourse, fellatio and cunnilingus. But that does not end the discussion.

T ouching a child without penetration of an orifice of the body has typically not been considered to be a major sexual offence: R v JED , 2018 MBCA 123 at para 146 R v Merrick , 2012 ABCA 319 at para 8 . However, such actions, when committed repeatedly or by a person in position of trust, can elevate the offence to a serious sexual assault: Merrick at para 9-10 and 15 ; R v Kemper , 2004 ABCA 348 at para 7 ; R v Sayers , 2015 ABCA 21 at para 12 .

Further, in R v TLG , 2006 ABCA 313 , our Court of Appeal stated (at para 11): ... in attempting to craft a fair sentence, a court must position on a continuum the nature of the assault, including the circumstances surrounding it, to determine its seriousness.

Seriousness must be considered not only with reference to the nature of the actual touching but to the degree of violation of the victim in the circumstances. [ 127 ] Our Court of Appeal in R v TLG observed that a major sexual assault can arise without certain serious acts having occurred because of the circumstances otherwise surrounding the event, including location and the prior relationship existing between the offender and victim (at para 12).

In that case, the accused broke into a home at night, took off his clothing, crawled into bed and fondled both an adult woman and her 10-year old daughter, who were sleeping in the same bed. The Court of Appeal concluded that the trial Judge had misapprehended the seriousness of the offence s which he mischaracterised as “only involving fondling”. [ 128 ] In Friesen , the SCC noted that sexual assault and sexual interference are broadly-defined offences that embrace a wide spectrum of conduct (at para 91).

The SCC went on to state (at para 146): ... it is an error to understand the degree of physical interference factor in terms of a type of hierarchy of physical acts. The type of physical act can be a relevant factor to determine the degree of physical interference. However, courts have at times spoken of the degree of physical interference as a type of ladder of physical acts with touching and masturbation at the least wrongful end of the scale, fellatio and cunnilingus in the mid-range, and penile penetration at the most wrongful end of the scale (see R. v.

R.W.V. , 2012 BCCA 290 , 323 B.C.A.C. 285, at paras. 19 and 33 ). This is an error — there is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference. As the Ontario Court of Appeal recognized in Stuckless (2019) , physical acts such as digital penetration and fellatio can be just as serious a violation of the victim’s bodily integrity as penile penetration (paras. 68-69 and 124-25). Similarly, it is an error to assume that an assault that involves touching is inherently less physically intrusive than an assault that involves fellatio, cunnilingus, or penetration.

For instance, depending on the circumstances o f the case, touching that is both extensive and intrusive can be equally or even more physically intrusive than

an act of fellatio, cunnilingus, or penetration. [ 129 ] Applying the specific factors set out in Friesen , I note: (

a) The Defence submitted evidence that EF is not likely to re-offend and EF has expressed remorse. As discussed above, this evidence was accepted in a qualified manner as it was not entirely persuasive. (

b) Importantly, this offence involved the worst abuse of a position of trust, an offence committed by EF against his daughter in the family home, which is a seriously aggravating factor. (

c) This offence consisted of a single episode for a relatively brief duration. (

d) The complainant was 14 years old, on the cusp of adolescence; Friesen cautions that offences against adolescents have been historically downplayed.

(

e) This offence consisted of sexual touching, in which some physical force was used. In considering both the degree of physicalinterference as well as the duration and frequency of the offence, Friesen cautions that the likelihood of long-term harm from notionallyless serious forms of sexual violence should not be discounted. (

f) CD was the unsuspecting victim of this offence. [130] I accept the Defence submission that EF’s rehabilitative prospects reduce the need for specific deterrence. However, withrespect to sexual offences against children, the paramount considerations are denunciation and deterrence. [131] CD’s Victim Impact Statement indicates both CD’s self-blame and her love for the father. However, the latter is not amitigating factor. An offender cannot hold his victim hostage to feelings of love, pity, or forgiveness. [132] I conclude that both the gravity of the offence and EF’s degree of responsibility are serious.

In my view, the facts of this offencedo not constitute a major sexual interference as described in Hajar. However, I am mindful that the SCC in Friesen directed courts to nolonger characterize sexual offences against children under a hierarchy of offences. [133] As discussed above, the mitigating factors in this case were far weaker than the aggravating factors.

EF’s susceptibility toCovid-19 in the institutional settings and his other health conditions might be considered mitigating factors, but the Defence evidencefailed to establish that these conditions could not be accommodated by the institutional authorities. Further, these conditions would notjustify reducing a sentence that is otherwise proportional to the gravity of the offence and the degree of blameworthiness of the offender(Myrette).

As discussed above, a compelling reason to reduce EF’s sentence are the circumstances of his incarceration including on anunrelated charge, for which I granted him 4 months’ credit. [134] Subject to the comments below with respect to the principle of totality, I sentence EF to a term of 24 months imprisonment, less4 months credit, for a total sentence of 20 months imprisonment. 6. Totality [135] The Defence argues that the sentence imposed in this matter should be concurrent to the sentence imposed by Burrows J in EF#2.

The Defence cited no authority in support. [136] The Crown argues that a concurrent sentence is not appropriate in this matter. There is no connection between this matter andthe other convictions. This matter occurred in a different time and space, in a different jurisdiction, and with different victims. [137] The test for determining whether a sentence should be concurrent or consecutive to another sentence is whether the offences areso closely linked to each other as to constitute a single criminal adventure.

Offences which satisfy that description may, but are notrequired to, receive concurrent sentences, while all other offences should receive consecutive sentences: Friesen at para 155; R v Dyck,2020 ABCA 412 at paras 26-27; R v Vigon, 2016 ABCA 75at para 22. [138] Where an accused is being sentenced to term of imprisonment while already serving a period of incarceration in respect of anunrelated offence, the sentences should run consecutively: R v Dieter, 2007 ABCA 152; R v Funk, 1988 ABCA 73 at para 3. This isreflected in s. 718.3(4)(

a) which provides that a court which sentences an accused shall consider directing that the term of imprisonmentthat it imposes be served consecutively to a sentence of imprisonment to which the accused is subject at the time of sentencing. [139] The sentence I imposed for this offence must be served consecutively to the sentence imposed by Burrows J in EF #2. [140] The Defence argues that because this sentence will be consecutive to his present sentences, the totality principle must be takeninto account.

The Defence cites R v Saunders, 2014 ABPC 133, as authority for the proposition that the principle of totality applies tooffenders who are serving sentences for other convictions. [141] The Crown argues that the principle of totality does not apply. The Crown argues that its sentencing submission is based onlyupon this stand-alone offence. This is not a totality situation in which multiple counts need to be considered individually and thenassessed in their totality to determine if the sentence is unduly harsh or long.

Therefore, it is not appropriate to consider if there needs tobe any adjustment and there does not need to be any adjustment. [142] The totality principle has two elements: statutory and common law.

Section 718.2(

c) states that “where consecutive sentencesare imposed, the combined sentence should not be unduly harsh or long.” [143] At common law, the totality principle requires a sentencing judge who orders an offender to serve consecutive sentences formultiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender: R vM(CA), (SCC), [1996] 1 SCR 500 at para 42; Friesen at para 157. [144] In general, courts are reluctant to apply the totality principle to discrete offences that are committed and prosecuted at differenttimes.

The concern is that doing so in order to reduce a sentence might encourage individuals to multiply their crimes and might be seenas treating a prior record, for which the offender is serving time, as a mitigating rather than aggravating factor: R v DAM, 2019 ABQB336 at para 24; R v O’Brien, 2011 NSCA 112 at para 14, leave to appeal denied, (SCC); R v Runkle, 1983 ABCA51 at para 10.

In general, the proper approach is to apply the totality principle separately to each discrete sentencing. [145] In Saunders, the case cited by the Defence, Judge Fradsham summarized this point in the following way (at para 68): While it is clear that the totality principle must be considered when there are consecutive sentences imposed, it is less clearwhether totality should be taken into account when a sentence is going to run consecutively to an already existing sentence. In thesecircumstances, Courts have been reluctant to say that the overall length that an offender will be in gaol should be considered.

This is

understandable since a court does not want to be seen to be giving an offender “a free pass”, or a discounted sentence simply because he or she is already serving a gaol sentence.... (emphasis added) [ 146 ] However, Judge Fradsham went on to state (at paras 68-69, 71-72): On the other hand, often when an offender is sentenced, there are multiple counts before the Court, arising from offences that may have occurred years apart. Although those cases would undoubtedly call for consecutive sentences, the overall global sentence would be subject to the principle of totality .

If Courts are concerned about the overall length of imprisonment for unrelated offences for which sentences are passed at the same time, then it seems to follow that a court should also be concerned with the overall length of imprisonment if the a [sic] current sentence is not going to start until the existing sentence is finished, making for a potentially very lengthy term of imprisonment.

Therefore, while courts have usually not come out and specifically stated that totality must be assessed when an offender will be sentenced consecutively to an existing sentence (some courts have even said the opposite), in practice, it can be seen that judges have taken the overall length of imprisonment into account. This is demonstrated in cases in which an offender is already serving a gaol sentence and a new offence is before the court, and the sentence imposed for the new offence is lower than the normal range ( see Wiens , supra ), or consecutive sentences are made concurrent ( see Alexandruk , supra ).

There are also cases, in which the totality of the two sentences is addressed, but based on the particular circumstances of the case, the overall length of the ultimate term of imprisonment is determined to be appropriate ( see Speidal , supra ). ... In my view, totality must be considered when imposing a consecutive sentence to an existing sentence which an offender is serving.

Section 718.2 (

c) of the Criminal Code is clear that when consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. If a judge imposes a consecutive sentence, which he or she is explicitly doing by stating that the current sentence will be consecutive to the existing sentence, then 718.2(

c) must be considered. However, when a court takes into account the principle of totality , it does not necessarily follow that an otherwise fit and proper sentence should be reduced.

In the case at bar, it is clear that the sentence imposed on the offender in January 2014, was at the very low end of the range as the result of a joint submission. [ 147 ] As Judge Fradsham points out, there are instances in which courts have considered the global effect on an offender who was serving a sentence on an unrelated offence. [ 148 ] In R v Morning Bird , 2008 ABCA 419 , the accused was sentenced by the sentencing judge to two years for a robbery. He had previously been sentenced for a similar offence of robbery, committed one week after the current offence, for which he was given two years.

The Court of Appeal agreed that the totality of the two consecutive sentences was excessive, and reduced the (second) 2 year sentence to 1 year. As Judge Fradsham noted, this case was somewhat unique in that the offences had been committed only a week apart and it was just happenstance that they were prosecuted separately. [ 149 ] The Court of Appeal took a similar approach in a couple of other cases. In R v Manybears, 2009 ABCA 82 at paras 7-8 , t he Court of Appeal reduced the offender’s sentence for robbery from 6 to 4 years since he was already serving a 5 year sentence for robbery.

The Court found that the global sentence of 11 years for two robberies would be excessive and that the offender’s possible rehabilitation should not be overlooked, despite the nature of the offences and his lengthy record. [ 150 ] In R v Fraser , 1993 ABCA 392 , the offender had been serving a sentence of 5.5 years for robbery, and was sentenced to another 7 years for another series of robberies. The Court of Appeal held that the global effect of the sentences was excessive and reduced the sentence to 4.5 years.

See also Funk . [ 151 ] But, in a relatively recent case, R v Herrington , 2017 ABCA 61 , where the offender was convicted of two set of offences only a month apart, the Court of Appeal held that the sentencing judge had not erred in refusing to give credit for the prior sentence. [ 152 ] The Newfoundland Court of Appeal has held that it is appropriate to address the effect of the existence of an unexpired sentence on totality: R v Clarke , 2021 NLCA 8 at para 73 ; R v Roberts , 2019 NLCA 43 at para 70 . [ 153 ] In R v Paul , 2009 MBQB 134 , the Court adopted a nuanced approach.

The Court expressed a reluctance to extend the application of the totality principle to unrelated offences but the Court did state that it was possible, indeed “preferable to consider them within the broader principle of proportionality” and that the sentence to be imposed had to be considered within the overall context (at para 22).

Ultimately though, the Court declined to use those unrelated offences to lessen the sentence being imposed where the offender seemed to have been undeterred and unrehabilitated by the previous convictions. [ 154 ] In my view, it would be an error to apply the totality principle to EF’s unrelated offences. Further, doing so would be contrary to the approach set out in Friesen for addressing sexual offences against children. However, I accept that the sentence for this offence should not be imposed in isolation and the fact that EF is serving time for unrelated offences may be considered.

I cannot conclude in all the circumstances that a total sentence of 20 months imprisonment, to run consecutively to the 5.5 year sentence imposed by Burrows J [2] , would be “unduly long or harsh” or crush EF’s rehabilitative prospects. [ 155 ] I find that a sentence of 24 months imprisonment, less 4 months credit, for a total sentence of 20 months imprisonment is fit and appropriate. 7. Ancillary and Other Orders [ 156 ] The Crown and Defence agree upon mandatory ancillary orders but do not agree upon discretionary ancillary orders under s.

161. [ 157 ] The Crown seeks two discretionary ancillary Orders as follows:

Section 161(b) – an order to prohibit the offender from any employment or volunteering in a capacity that would involve having responsibility for children under 16, for life.

Section 161(c) – an order prohibiting the offender from having contact with persons under 16, unless in the presence of a responsible adult, or as allowed by an Order of a Court of Competent jurisdiction. [ 158 ] The Crown points out that s. 161 orders are not punitive. The Crown argues since the Offender committed an egregious offence with high moral culpability and was in a position of trust, such orders are necessary in order to protect the public. The Crown concedes that the latter Order (s 161(c)) is more problematic. [ 159 ] The Defence opposes the s. 161 orders, arguing that there is no basis for them. [ 160 ]

Section 161 prohibitions are protective in nature and are intended to shield children from sexual violence. The focus should be on what is reasonably required to minimize that risk in the offender’s particular circumstances. Section 161(1) should be given a generous

interpretation and courts should not be reluctant to impose

section 161 orders: R v RKA , 2006 ABCA 82 at para 25 . There must be a nexus

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