2023 NBPC 14, 2023 NBPC 14

CANADA PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT Sentencing Hearing Date: April 12 th , 2023 Sentencing Decision Date: July 14 th , 2023 Docket No.: 158208 and 159477 Neutral Citation: 2023 NBPC 14 HIS MAJESTY THE KING - and - [A.A.] Decision of the Honourable Judge Scott A.

Brittain Provincial Court of New Brunswick Pursuant to paragraph 486.4(3) of the Criminal Code of Canada , there is a ban in place respecting the publication of any information that could identify any witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section. No such information shall be published in any document or broadcast or transmitted in any way.

References to the actual names or and/or initials of those involved as well as references to specific geographic locations have been anonymized and/or generically expressed in parenthesis in keeping with the intention underlying the publication ban. APPEARANCES: Shara Munn, on behalf of His Majesty The King Martin Siscoe, on behalf of [A.A.] THE CHARGES 1 . On January 30 th , 2023, [A.A.] entered guilty pleas on four counts set out in two Informations sworn to, respectively, on February 23 rd , 2022 and May 4 th , 2022.

As amended, these charges read as follows: 1. [A.A.], on or between the 1 st day of January, 2013 and the 25 th day of December, 2020, at or near [XX], Ontario, and [YY], New Brunswick, did make child pornography, as defined by Subsection 163.1(1) of the Criminal Code of Canada , contrary to and in violation of Subsection 163.1(2) of the Criminal Code of Canada and amendments thereto; 2. [A.A.], on or between the 1 st day of January, 2013 and the 25 th day of December, 2020, at or near [XX], Ontario, and [YY], New Brunswick, did for a sexual purpose touch [C.C.], a person under the age of sixteen years, directly with a part of his body, to wit: his penis, contrary to and in violation of Subsection 151 (

a) of the Criminal Code of Canada and amendments thereto; 3. [A.A.], on or between the 1 st day of January, 2013 and the 29 th day of December, 2021, at or near [XX], Ontario, and [YY], New Brunswick, did for a sexual purpose invite [C.C.], a person under the age of sixteen years, to touch directly a part of his body, to wit: his penis, contrary to and in violation of Subsection 152 (

a) of the Criminal Code of Canada and amendments thereto;

4. [A.A.], on or about the 22 nd day of February, 2022, at or near [YY], in the County of [ZZ] and Province of New Brunswick, did possess child pornography, as defined by Subsection 163.1(1) of the Criminal Code of Canada , thereby committing an indictable offence contrary to and in violation of Subsection 163.1(4) (

a) of the Criminal Code of Canada and amendments thereto. ISSUE 2 . It is my responsibility to determine and impose a fit and appropriate sentence for [A.A.], having regard to the facts, the applicable law, his aggravating and mitigating factors and his background as an offender. THE FACTS 3 . I adopt the facts provided by the Crown and agreed to by [A.A.] at the time I accepted his guilty pleas; however, it is important to provide an overview of the facts in order to frame the context for this sentencing decision. 4 .

On December 29 th , 2021, [B.B.], the mother of [C.C.], a minor, reported to the [local] RCMP that her ex-common law spouse, [A.A.], had contacted [C.C.] via a series of late evening and overnight text messages which began with a discussion about rap music lyrics, escalated to vulgarity and culminated in [A.A.] inviting [C.C.] to “come suck me”. At the time, [C.C.] was 13 years-old. 5 . When [C.C.] brought these text messages to [B.B.]’s attention the following morning, she also disclosed to her mother, referring to [A.A.], that “daddy touched me” in the past.

I note that [A.A.] is not the biological father of [C.C.] Rather, he entered her life when she was about four years-old and remained involved in her upbringing for a span of approximately eight years during his mostly on, but sometimes off, relationship with [B.B.]. During this relationship, [A.A.], [B.B.], [C.C.] and a son that was the product of the relationship between [A.A.] and [B.B.] lived together as a family in two provinces: Ontario and New Brunswick. 6 . A forensic interview was conducted by the RCMP to pursue with [C.C.] the nature and extent of the sexual touching she reported experiencing.

During this process, [C.C.] revealed that [A.A.] repeatedly sexually abused her over the span of eight years. These innumerable instances of sexual abuse, she explained, usually occurred when [B.B.] was at work and her brother was occupied in another part of the family residence playing video games. 7 . The many years of unrelenting sexual and psychological torment began when [C.C.] was only four or five years-old. It happened, on average, two to three times per week, which means [A.A.] sexually abused [C.C.] on several hundred occasions.

The sexual abuse perpetrated by [A.A.] consisted of penetrative (or attempted penetrative) oral, vaginal and anal intercourse. It stopped over a few different periods totaling two or three years, which corresponded with separations of varying duration in the relationship between [A.A.] and [B.B.]. Each time they patched things up and reunited, [A.A.]’s sexual and psychological torment of [C.C.] resumed. The relationship between [A.A.] and [B.B.] came to a final conclusion in December of 2020. 8 .

During these many instances of sexual abuse, [C.C.] explained [A.A.] would sometimes direct her “to call him daddy in a bad way” and tell him “it felt so good” when he penetrated her or performed oral sex on her. As a prelude to these events, [A.A.] would usually take [C.C.] by the arm or physically carry her to the part of the family residence where they were carried out. When she resisted, [C.C.] explained [A.A.] would “pull and shove me” until compliance was achieved.

On a few occasions, [C.C.] “tried to get away” mid-event but [A.A.] used his strength and size advantage to “pin me down” and continue until he was finished. 9 . Though [A.A.] never uttered verbal threats toward [C.C.] in conjunction with these multiple instances of sexual abuse, [C.C.] understandably lived in fear and was terrified each time they unfolded within the sanctity of the family home.

In addition to routinely penetrating [C.C.] in various ways with his penis, which often ended with him ejaculating on her stomach or trying to ejaculate inside her mouth, [C.C.] reported that [A.A.] also routinely “touched me with his tongue and fingers” and would sometimes force her to watch videos of young girls of a similar age being penetrated with various objects by adult males, including one video in which a Sharpie marker was used. 10 . After each instance of sexual abuse, [A.A.] would make [C.C.] shower.

On one occasion, [C.C.] reported that [A.A.] “left marks on me” and explained further that he “wouldn’t let me go to school like that”. On another occasion, [A.A.] used his cellular phone camera to take photographs and videos of [C.C.] while she was naked and he was sexually abusing her. 11 . Based on the information conveyed by [C.C.] during her forensic interview, a search warrant was issued and executed by the RCMP at [A.A.]’s residence on February 22 nd , 2022. Several electronic devices were seized during this search.

Across these electronic devices, the RCMP identified and inventoried a total of 303 unique child pornography videos and 19,018 unique child pornography images. The overwhelming majority of the images and videos found in [A.A.]’s enormous child pornography collection consisted of pre-pubescent females between two and 12 years of age (with an average age of approximately 10) posing, stripping, exposing themselves, masturbating or being sexually abused by adult males.

Found amongst [A.A.]’s voluminous child pornography collection was a video of a young girl being penetrated with a Sharpie marker, just as [C.C.] had recalled and described. 12 . In providing the facts in support of the essential elements of the offences, the Crown showed me five images comprising a “representative sampling of the collection”: a genteel term for something so disturbing on every level. These five images were marked as an exhibit on consent.

The Crown noted that the majority of images and videos found in [A.A.]’s collection clearly show the faces of the victims. 13 . [A.A.] was arrested and confessed to these crimes during a cautioned statement. He was cooperative and provided passwords to the RCMP for the seized electronic devices. [A.A.] acknowledged he took photographs and made video recordings during one of the many events of sexual abuse involving [C.C.]

14. When the facts were provided by the Crown, [A.A.] initially disputed ever having penetrated [C.C.] vaginally or orally butacknowledged having attempted to penetrate her anally “on one occasion”. It appeared that this position would necessitate a Gardinerhearing pursuant to subsection 724(3) of the Criminal Code of Canada (the “Criminal Code”); however, [A.A.] quickly resiled from thisposition and ultimately acknowledged the extent of his sexual and psychological torment of [C.C.], as earlier described, therebyeliminating the necessity of such a hearing. POSITIONS OF THE PARTIES The Crown’s Position 15.

The Crown recommends a global consecutive period of incarceration in the 10-to-12-year range, readily acknowledging that asignificantly longer period of incarceration would accompany these offences but for the application of the totality principle. Additionally,the Crown seeks several ancillary orders, all of which will be canvassed and detailed at the conclusion of this sentencing decision. [A.A.]’s Position 16. [A.A.]’s solicitor recommends a global consecutive period of incarceration of nine years, also noting that the totality principlelooms large.

On behalf of his client, [A.A.]’s solicitor does not contest or otherwise object to the ancillary orders sought by the Crown. Remand Credit 17. The Crown and counsel for [A.A.] agree on the applicable remand credit in this case, noting [A.A.] has been held continuously in pre-trial detention since February 22nd, 2022. This, inclusive of today’s date, gives rise to a straight remand time calculation of 508 dayswhich, in turn, translates into a total remand credit of 762 days after the applicable multiplier is applied. [A.A.]’S BACKGROUND AND CIRCUMSTANCES 18.

I have the benefit of a Pre-Sentence Report prepared regarding [A.A.]. He is 36 years-old and was born [outside Canada]. He hascompleted some post-secondary education. His father, a violent alcoholic, was killed in a motor vehicle accident in [A.A.’s country oforigin] when [A.A.] was 10 years-old. His mother, who had similarly violent tendencies, died of cancer in 2017. [A.A.] has one olderbrother who continues to reside in [A.A.’s country of origin] and with whom he has no contact or relationship. 19.

When [A.A.] was 14 years-old, he moved with his mother to [Canada] after she met online and later married a member of theCanadian Armed Forces. [A.A.]’s older brother remained in [A.A.’s country of origin]. Shortly after his arrival in Canada, [A.A.] becameaddicted to alcohol and drugs. He reports that his stepfather physically abused both he and his mother. At age 16, [A.A.] ran away fromhome, during which period he reports having been the victim of a sexual assault. As a young child and at various other intervals duringhis formative years, [A.A.] reports having been exposed to child pornography.

Though not addressed in his Pre-Sentence Report, [A.A.]conveyed that one form of abuse that his mother perpetrated against him when he was a child was making him strip naked and drink herurine from a cup. 20. At age 22, [A.A.] joined the Canadian Armed Forces. At around the same time, he met [B.B.]. Soon after, they had a son together.[A.A.] was honourably discharged in 2017 after eight years of military service owing to various mental health issues, including psychoticepisodes requiring his admission to a psychiatric unit.

He has made several attempts on his own life over the years and has beendiagnosed with Borderline Personality Disorder, Bi-Polar Disorder, Obsessive-Compulsive Disorder, Generalized Anxiety Disorder,Cannabis Use Disorder, Alcohol Use Disorder, Social Anxiety Disorder and Post-Traumatic Stress Disorder. Indeed, his mental healthissues led to an extended referral to Restigouche Hospital Centre at the beginning of this proceeding where he was eventually found fit tostand trial. 21. [A.A.] has a limited, dated and unrelated criminal record.

In addition to an old impaired driving charge, [A.A.] was convicted ofuttering threats contrary to paragraph 264.1(1)(

b) of the Criminal Code in 2016 when he was residing in Ontario. For this offence, hereceived a six-month conditional sentence together with 18-months of probation. There is an opaque reference to this conviction on page4 of the Pre-Sentence Report with the accompanying suggestion that it somehow involved [C.C.]. I wish to make it clear at this juncturethat there is insufficient clarity before me on this point to permit me to consider this as an aggravating factor in the passing of sentence. VICTIM IMPACT STATEMENTS 22.

As is clear from the facts, [A.A.]’s victims can be placed into two categories: (1) [C.C.] was repeatedly sexually abused by [A.A.]over an eight-year span. Moreover, [A.A.] also took sexual photographs and made sexual videos of [C.C.] when she was a minor, whichconstitutes the production of child pornography, and (2) [A.A.] amassed an immense child pornography collection independent of hisrecordings of [C.C.].

Accordingly, there are many additional children who have been victimized by [A.A.], for each time an image orvideo of child pornography is collected or viewed, it inescapably constitutes a revictimization of the child or children depicted (see: R. v.Andrukonis, 2012 ABCA 148 at paragraph 29). 23. I will address each category of victim in turn. Before doing so, however, it bears mentioning that, at once, the biggest blessing and

curse of the Information Age is the ability to share, both quickly and easily, information in various formats to a wide audience. When put to its best and most productive uses, the Internet is an immensely powerful tool for good. When used for nebulous or despicable purposes, such as those present in this case, the Internet is a similarly powerful tool for facilitating widescale devastation and harm. 24 . As my colleague, Gunn PCJ, observed in R. v.

Donovan , a 2021 unreported decision, “there was a time, long ago, when the possession of child pornography was so infrequent, or at least so far from public view, that it attracted scant attention from law enforcement, little notice from the community and sentences that were of minimal impact”. Even when this form of criminality became more pervasive, it was still “viewed as largely victimless”. Given this approach, “sentences imposed for such offences continued to fail to reflect the trauma and ongoing impact of the crime on its victims”.

In more recent times, and in response to the Information Age and the accompanying accelerated proliferation of child pornography as well as a more enlightened and nuanced understanding of victim impact, sentencing courts have been directed by the Supreme Court of Canada to revisit the types of sentences imposed for offences that negatively impact the personal autonomy, bodily integrity, sexual integrity, dignity and equality of children. This is the lens through which I consider the Victim Impact Statements and, more generally, the sentencing of [A.A.].

The Victim Impact Statements of [C.C.] and [B.B.] 25 . [C.C.]’s Victim Impact Statement reports a profound level of distrust and unease on her part when she is around adult males as well as a fear that they “are going to come up to me and take me”. She further states that “I think I will need counselling for a long time when I get into relationships with men because of trust issues”.

The sexual and psychological torment haunts her thoughts while awake and produces nightmares while asleep. [C.C.] is in constant fear that [A.A.] “will break out of jail and try to kidnap me” and her nightmares include scenarios where [A.A.] finds her, chases her down, takes her away and sexually abuses her again. Additionally, these events have precipitated a move [of a considerable distance] which has brought with it the loss of friends and the anxiety and struggle of settling into a new environment at a difficult age.

In short, [C.C.]’s life has been upended on many levels by [A.A.]. 26 . [B.B.] reports that she is “angry with myself, hurt and I feel a sense of loss for her” and, relatedly, she feels a sense of “shame” for “not protecting” her daughter: a sentiment frequently expressed by parents in the wake of discovering their child has been the victim of this type of criminality at the hands of someone close to them. [B.B.] notes that “while this sentencing is a relief to me and my children, it will be a forever lifelong process for us to heal.

We will never feel safe again and will always feel guarded and looking behind our backs”. [B.B.], for example, reports a recent event where [C.C.] suffered a “panic attack at school all because a male teacher pulled her aside to speak with her”. What would otherwise amount to entirely innocuous events can be major triggers for [C.C.] owing to the significant and lasting trauma that [A.A.]’s devastating actions have and continue to visit upon her. The Balance of the Victim Impact Statements 27 .

The remaining nine Victim Impact Statements before me have been provided by six of the young women who law enforcement were able to specifically identify in [A.A.]’s child pornography collection and by three of their mothers. Some audio recordings of these Victim Impact Statements were played at [A.A.]’s sentencing hearing. I have carefully considered each Victim Impact Statement and will briefly precis their contents. 28 . One victim notes “the fact that there are pictures out there make it so that I can’t help but remember the things that I desperately want to erase.

I feel hopeless and I get embarrassed about it. I feel self-conscious and exposed”. Another victim states “every time someone else sees pictures or videos of me it feels like they are the ones who hurt me to begin with…anyone who looks at those horrible pictures of me or other children are abusing us. Anyone who looks is keeping my pain going for the rest of my life”. 29 . Reflecting on what she anticipates will be a “lonely future”, another victim laments about the unlikelihood she will ever marry or have children. She expresses that “I don’t want kids because I’m just so fearful of something happening to them”.

Consistent with the foregoing observations, another victim points out that “it blows my mind that [my images are] still going around after all of these years. I am now an adult and it happened to me when I was so little. I was a child. And people are still watching it. It is always on my mind that those images will always be circulating”. 30 . The mother of one of [A.A.]’s victims states: These images have taken on a life of their own as they are passed from pedophile to pedophile. Thousands of people have been arrested with her photos in their possession.

My daughter fears that people will recognize her from the photographs and will find out where she lives and come harm her or her family. My daughter is an intelligent child and she knows that these men are pleasuring themselves sexually while looking at her pictures. It has created a lot of anxiety, damage to her self-esteem, and irrational fears that will require a lifetime of support/counseling to manage.

In her mind, every man she sees is a potential threat (not just her original abuser)…Always lurking in the back of her mind, is the possibility that she will be identified and attacked by a pedophile who has become obsessed with her…my child stays away from social media and lives in fear of posting her image on the Internet, being recognized by a pedophile who has seen her photos, and being in danger. 31 . The scope and reach of the trauma, torment and devastation that [A.A.]’s criminality has generated is staggering.

The resiliency of his many victims is indeed noteworthy and the vulnerability and empowerment that is simultaneously reflected in their words is truly remarkable. As hard as it must be to revisit these horrendous events with a view to assisting the Court in better understanding the many negative impacts these offences have produced in the lives of the most vulnerable amongst us, our children, I want [A.A.]’s victims to know their many voices are heard. In my view, Victim Impact Statements are a critically important component of the sentencing process.

Nowhere is this observation more evident than in cases where the innocence of children has been robbed by crimes of sexual abuse and exploitation.

THE GENERAL PRINCIPLES AND PURPOSES OF SENTENCING 32. Sentencing has been described as “one of the hardest tasks confronting a trial judge” (see R. v. Gardiner, (SCC) atparagraph 108). The Supreme Court of Canada has recognized that the fitness of a sentence imposed can establish or diminish the“credibility of the criminal justice system in the eyes of the public” (see R. v. Lacasse, 2015 SCC 64, at paragraph 3). 33. The task is governed by the provisions of the Criminal Code.

It involves “the exercise of a broad discretion by the courts inbalancing all the relevant factors in order to meet the objectives being pursued in sentencing” (see R. v. Bosco, 2016 BCCA 55, atparagraph 29). The purpose and principles of sentencing, as set out in the Criminal Code, allow for “sentence individualization" andguide the sentence this Court must impose. 34. In particular,

section 718 of the Criminal Code describes the fundamental purpose of sentencing. It reads: 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

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

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. 35. What constitutes an appropriate sanction and which of the objectives may be most important is not dictated by strict guidelines orrigid imperatives. Rather, the imposition of a just sentence requires “sufficient manoeuvrability to tailor sentences to the circumstancesof the particular offence and the particular offender” (see R. v. Ipeelee, 2012 SCC 13, at paragraph 38). Put another way, sentencing ismore art than science. 36.

I will address the objectives and principles of sentencing and later highlight those that are predominant in this case given thespecific nature of the offences committed by [A.A.]. 37. The objectives described in

section 718 of the Criminal Code may have predominance in a set of circumstances dictated by theoffence, the offender or both. On some occasions, the objective of denunciation (often along with deterrence) “must be emphasized toconvey society's condemnation” (see R. v. Lacasse, 2015 SCC 64, at paragraph 5). When denunciation becomes predominant, courts may“have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peacefuland law-abiding society” (see R. v. Lacasse, 2015 SCC 64, at paragraph 6).

I am required to attribute to the objectives of denunciationand deterrence their proper predominant influence in the crafting of a just sentence. 38. Deterrence is subdivided into specific and general elements. Specific deterrence is designed to convince the offender not to re-offend. The circumstances of the offender and the prospects for rehabilitation must be considered. The sentencing court must look at theindividual, their record and attitude, their motivation and their reformation and rehabilitation. 39.

General deterrence is aimed at persuading others who may be inclined to commit the same offence from so doing. If this is the aim,the sentencing court must consider the gravity of the offence, the incidence of the crime in the community, the harm caused by it eitherto the individual or to the community and the public attitude toward it. 40. The separation of an offender from society is sometimes necessary. The application of the objective must be read in concert withsubsection 718.2(

e) of the Criminal Code, which requires that imprisonment be the sentence of last resort. 41. The maintenance of a just, peaceful and safe society, as is mandated by

section 718 of the Criminal Code, can often best beachieved by the rehabilitation of offenders. As the Supreme Court of Canada has held, “[r]ehabilitation is one of the fundamental moralvalues that distinguish Canadian society from the societies of many other nations in the world” (see R. v. Lacasse, 2015 SCC 64 atparagraph 4). 42. The Criminal Code also holds that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity ofthe offence and the degree of responsibility of the offender.

This is a codification of the proportionality principle and is found at section718.1 of the Criminal Code. 43. Other principles are important in crafting an appropriate sentence here. First, subsection 718.2(

b) of the Criminal Code states that“a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. This isa codification of the parity principle. 44. Subsection 718.2(

a) of the Criminal Code indicates that a “sentence should be increased or reduced to account for any relevantaggravating or mitigating circumstances relating to the offence or the offender”.

Section 718.2 also dictates that: (

d) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

e) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(

f) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. 45. The “totality principle” strongly militates against the imposition of “unduly long”, “disproportionate” or “crushing” consecutivesentences, as is codified in subsection 718.2(

d) of the Criminal Code. In effect, the “totality principle” safeguards against a “pile on”,which can present in a wide variety of circumstances including those where the offender faces multiple charges committed in rapidsuccession and/or the offender is serving a consecutive sentence or consecutive sentences already. The applicable principles andcorresponding approach to totality were recently re-emphasized by the Court of Appeal of New Brunswick in Brown v.

R., 2022 NBCA33 , where the following was noted at paragraph 23: [23] A framework for the principled application of the totality principle was addressed by this Court in R. v. Peterson, 2017 NBCA29, [2017] N.B.J. No. 152 (QL), per Quigg J.A., which adopted the guidelines set out in R. v. Hutchings, 2012 NLCA 2, [2012] N.J. No.12 (QL), per Green C.J.N.L., as he then was.

These guidelines (Hutchings, at para. 84) may be summarized as follows: 1. identify a sentence for each offence, applying proper sentencing principles; 2. consider whether any of the individual sentences should be made consecutive or concurrent, on the ground that they constitute asingle criminal adventure; 3. if this results in two or more sentences being served consecutively, take one “last look” at the combined sentence to determinewhether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility ofthe offender, having regard to the following factors:

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offencesinvolved;

b) the number and gravity of the offences involved;

c) the offender’s criminal record;

d) the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing, and

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of theoffences and the offender’s degree of responsibility; 4. if the combined sentence is not unduly long or harsh and is proportionate to the gravity of the offences and the offender’s degree ofresponsibility, the sentence must stand; 5. where the combined sentence is unduly long or harsh, determine the extent to which the combined sentence should be reduced toachieve a proper totality by, first, attempting to adjust one or more of the sentences by making it or them concurrent with othersentences, but if that does not achieve the proper result, in addition, or instead, reduce the length of an individual sentence below what itwould otherwise have been; and 6. in imposing individual sentences adjusted for totality, the judge should be careful to identify:

a) the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, withoutconsiderations of totality;

b) the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and

c) the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are to be madeconcurrent or to be otherwise reduced. 46. These are the general principles that inform [A.A.]’s sentencing. Below I will canvas those principles and purposes of sentencingthat figure most prominently in this case owing to the specific nature of the offences before me. THE PREDOMINANT PRINCIPLES AND PURPOSES OF SENTENCING IN THIS CASE 47. The Supreme Court of Canada’s recent landmark decision in R. v.

Friesen, 2020 SCC 9 constitutes the guide sentencingcourts must follow when determining a fit and appropriate sentence for sexual offences against children. Moreover, R. v. Friesen alsostrongly cautions against reliance on sentencing decisions which pre-date it. Such an approach could lead a sentencing court into errorgiven the fundamental shift that R. v. Friesen has ushered in, which strongly emphasizes the need to ratchet up sentences for this form ofcriminality (see: R. v. Williams, 2020 BCCA 286 , at paragraph 73). 48. At paragraph 1 of R. v.

Friesen, the Supreme Court of Canada emphasized the need “to impose sentences that fully reflect and giveeffect to the profound wrongfulness and harmfulness of sexual offences against children”. I note that several themes reflected in R. v.Friesen have been evident in jurisprudence of the Court of Appeal of New Brunswick dating back more than 20 years (see, for example,R. v. (P.) R., 2001 NBCA 115 ). 49.

Notwithstanding the fact that a considerable portion of the event date spans for the first three offences in this case precedes R. v.Friesen, subsequent appellate guidance makes it clear that the principles and analysis in R. v. Friesen apply here (see, for example, M.L.v R., 2021 NBCA 27 (offences occurring 2012-2014) at paragraph 23 and also R. v. Plehanov, 2020 BCCA 249 atparagraphs 19 and 21).

50. The predominant principles and purposes of sentencing in this case are denunciation and deterrence, both general and specific. Infashioning a fit and appropriate sentence for [A.A.], I am required to give effect to the gravity of sexual offences against children, morespecifically: (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from such offences; and (3) theactual harm that children suffer from these offences (see R. v. Friesen at paragraph 76). 51.

I am also mindful of the consistent refrain of the Supreme Court of Canada that “the maximum sentence for an offence is areflection of, and a proxy for, its seriousness” (see, for example, R. v. Friesen at paragraphs 95 to 96 and, more recently, R. v. Sharma,2022 SCC 39 at paragraph 105). 52. In keeping with this direction, I have given due consideration to the maximum penalties that accompany each of the offences beforeme. I have also been attentive to circumstances where the maximum penalties have been modified by Parliament under the CriminalCode during the event date spans set out in the first three charges.

It is a fundamental right of [A.A.] that he be subject to the sentencingranges as they existed when each offence was committed. This, however, does nothing to displace the overall direction given by theSupreme Court of Canada in R. v. Friesen. 53. The sentencing considerations outlined in R. v. Friesen are extensive, nuanced and varied. At paragraph 24 of R. v. E.J.D., a 2022unreported sentencing decision, Gregory J. of the New Brunswick Court of King’s Bench provides an extremely helpful inventory of theguidance given to sentencing courts in R. v. Friesen.

I reproduce paragraph 24 below in its entirety: [24] Friesen directs sentencing judges to increase the sentences of offenders who sexually violate children. Some key points fromFriesen are worth summarizing here, as follows:

a) children are the future of our country and our communities. They are also some of the most vulnerable members of our society. Theydeserve to enjoy a childhood free of sexual violence; Friesen, para. 1

b) we need to send a strong message that sexual offences against children are violent crimes that wrongfully exploit children'svulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase; Friesen, para. 5

c) sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that itcauses to children, families, and society at large; Friesen, para. 5

d) protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offencesagainst children in the Criminal Code; Friesen, para. 42

e) protecting children from becoming victims of sexual offences is thus vital in a free and democratic society; Friesen, para. 42

f) to effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexualoffences against children and the profound harm that they cause. Getting the wrongfulness and harmfulness right is important; Friesen,para. 50

g) the prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodily integrity,sexual integrity, dignity, and equality of children; Friesen, para. 51

h) the modern prohibition on sexual interference thereby gives effect to "Parliament's recognition that adult/youth sexual relationshipsare inherently exploitative" by reason of the lack of maturity, judgment, and experience of children; Friesen, para. 53

i) in emphasizing the harmfulness of sexual offences against children, we do not intend to stereotype child victims of sexual violence asforever broken. To the contrary, it takes great "strength and courage" to survive sexual violence as a child; Friesen, para. 59

j) we thus offer some guidance on how courts should give effect to the gravity of sexual offences against children. Specifically, courtsmust recognize and give effect to: i. the inherent wrongfulness of these offences; ii. the potential harm to children that flows from these offences; and, iii. the actual harm that children suffer as a result of these offences;

k) we emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as thedegree of wrongfulness, the extent to which potential harm materializes, and actual harm varies from case to case; Friesen, para. 76

l) intentionally applying force of a sexual nature to a child is highly morally blameworthy, because the offender is or ought to be, awarethat this action can profoundly harm the child; Friesen, para. 88

m) these comments should not be taken as a direction to disregard relevant factors that may reduce the offender's moral culpability. Theproportionality principle requires that the punishment imposed be "just and appropriate ..., and nothing more"; Friesen, para. 91

n) to respect Parliament's decision to increase maximum sentences, courts should generally impose higher sentences than the sentencesimposed in cases that preceded the increases in maximum sentences; Friesen, para. 100

o) we wish to provide guidance to courts on three specific points: i. upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence; ii. sexual offences against children should generally be punished more severely than sexual offences against adults; and,

iii. sexual interference with a child should not be treated as less serious than sexual assault of a child. Friesen , para. 107

p) that message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim; Friesen , para. 114

q) a child will likely suffer more harm from sexual violence where there is a closer relationship and a higher degree of trust between the child and the offender; Friesen , para. 126 .

r) we would thus emphasize that, all other things being equal, an offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child; Friesen , para. 130

s) 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. Visscher , 2012 BCCA 290 , 323 B.C.A.C. 285(B.C. C.A.) , 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. Friesen , para. 146 AGGRAVATING AND MITIGATING FACTORS Aggravating Factors 54 . Having regard to the principles of law earlier canvassed, I find the following circumstances to be aggravating in this case: a. The frequency, duration and magnitude of sexual abuse and psychological torment of a severe and violent nature that was perpetrated by [A.A.] against [C.C.], which consisted of hundreds of independent events over eight years; b.

The enormity of [A.A.]’s child pornography collection; c. [C.C.] as well as the victims depicted in [A.A.]’s child pornography collection were all well under the age of 18, with [C.C.] having only been four or five years-old when the sexual abuse against her began (see paragraph 718.2 (a)(ii.1) of the Criminal Code ); d. [A.A.] was in a common law relationship with [B.B.] and acted in loco parentis as stepfather to [C.C.] He was a close member of [C.C.]’s family (see paragraph 718.2 (a)(ii) of the Criminal Code ); e. [A.A.]’s offences involving [C.C.] amounted to an abuse of a position of trust or authority given he acted in loco parentis as stepfather to [C.C.] (see paragraph 718.2 (a)(iii) of the Criminal Code ); f.

There is substantial information before me that [A.A.]’s offences have had and continue to have a significant adverse impact on his victims considering their age and other personal circumstances (see paragraph 718.2 (a)(iii.1) of the Criminal Code ), and g. The multiple instances of sexual assault against [C.C.] took place in the family home, which serves to damage a child’s sense of security and sanctuary in the home environment. Mitigating Factors 55 .

I find the following circumstances to be mitigating in this case: a. [A.A.] has entered guilty pleas at an early stage, which is a powerful mitigating factor because it, at once, saves limited public resources while also relieving at least one young and vulnerable victim, [C.C.], from having to testify and relive the trauma he caused her to suffer in a highly stressful and adversarial trial setting; b. [A.A.] has expressed contrition and remorse for his criminal conduct, which I believe to be sincere;

c. [A.A.] has a limited, dated and unrelated criminal record. I earlier offered my thoughts regarding its applicability, or lack thereof,to this sentencing, and d. [A.A.] cooperated with law enforcement. APPLICATION OF THE LAW 56. The facts of this case are profoundly disturbing and [A.A.]’s moral blameworthiness is very high. Children are among the mostvulnerable members of society and they deserve to experience an upbringing free of sexual violence and its accompanying psychologicaltorment.

The devastation visited upon children who are the victims of these crimes is palpable, with the resultant invisible mental scarsfrequently lasting a lifetime. 57. The adverse effects of this form of criminality also extend to the families of victims and the community at large. This is evident, forexample, in the powerful Victim Impact Statements provided by the mothers of four victims of [A.A.].

One can only imagine the painand anguish that haunts a parent when they learn that their child has been the victim of sexual crimes, especially when such crimeshappen under their nose and involve a close family member in whom they placed an unqualified level of trust. Notably, each of theVictim Impact Statements from the mothers of [A.A.]’s victims reflect deep-seated feelings of guilt and betrayal for having “failed toprotect their children”.

There are many layers to the injurious knock-on effects that flow from this form of criminality, which can includethe evisceration of previously close relationships and irreparably tearing families apart. 58. The sentence imposed in this case must accurately account for and reflect the wrongfulness of sexual violence against childrenwhile sending a strong message of denunciation and deterrence, both specific and general.

On each of the hundreds of occasions that[A.A.] chose to sexually abuse [C.C.] within the security and sanctity of the family home, he was or ought to have been aware that theseactions would profoundly harm her. In R. v. Friesen, the Supreme Court of Canada permits sentencing courts to take judicial notice of thefact that a child will likely suffer more harm from sexual violence where there is a closer relationship and a higher degree of trustbetween the child and their abuser.

Few relationships are closer and foster a higher degree of trust than that which develops between anadult acting in loco parentis and a young, vulnerable and impressionable child. 59. The Supreme Court of Canada has also made it clear that those who abuse positions of trust to commit sexual offences againstchildren should receive lengthier sentences and, in the post-R. v. Friesen world, mid-single digit penitentiary terms for sexual offencesagainst children are common and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare orexceptional circumstances.

Such lengthy sentences, it should be noted, are even in play in cases where there has been a single standaloneevent. 60. Turning to the parity and proportionality principles, I will first address the charges under subsections 151(

a) and 152(

a) of theCriminal Code. In the decision of the Court of Appeal of New Brunswick in Horn v. R., 2021 NBCA 59 , the accused wascharged with the same counts noted above in relation to a young girl. These events happened when she was between the ages of five andseven. The victim was the daughter of the woman with whom the accused was in a romantic relationship and the nature of the sexualabuse consisted of anal penetration, licking her vagina, her anus and breasts, and having her masturbate him while viewing porn.

Theaccused was found guilty after trial and later sentenced to a global consecutive sentence of eight years less remand credit. The appealengaged a wide variety of considerations that were unrelated to the sentence imposed. 61. In M.L. v. R., 2021 NBCA 27 , a seven-year global consecutive sentence was imposed after trial involving four charges.The victim was the daughter of the accused. There were three events over two years at which times the victim ranged in age between 12and 14.

These events consisted of a variety of sexual acts, including sexual touching, digital penetration, an attempt to have his daughtermasturbate him and attempted vaginal penetration with his penis while she was sleeping. The Court of Appeal of New Brunswickquashed the imposition of a concurrent sentence on one charge and stayed it owing to the application of the Kienapple principle butotherwise upheld the seven-year global consecutive sentence. 62. In Dedam v.

R., 2022 NBCA 41 , the Court of Appeal of New Brunswick reduced a global consecutive sentence from the10 years that was imposed at first instance following trial to nine years. This case involved historical sexual abuse against three childvictims which spanned a shorter period of time than what persisted in the case of [A.A.]. 63. In R. c. Durelle, 2022 NBBR 67 , LeBlanc J. (as she then was) imposed a consecutive sentence of 18 months for an offenceunder

section 151(

a) of the Criminal Code in circumstances where there was a single event of over the clothes touching perpetrated bythe husband of a daycare provider against a 12-year-old child who was under his wife’s care. 64. Looking outside this jurisdiction, I note that in R. v. B.J.R., 2021 NSSC 26 , the accused did not have a criminal record andplead guilty to one charge under

section 271 of the Criminal Code. The victim was the accused’s 16-year-old adopted daughter. Therewas a single incident where the accused, while intoxicated, placed his hand between the legs of the victim and performed oral sex on herfor about one minute until she told him to stop while crying. This occurred during a camping trip. Muise J. imposed a three-yearconsecutive sentence. 65. In R. v. O., 2020 ABQB 497 , the accused was convicted after trial on four counts, one of which was stayed owing to theapplication of the Kienapple principle. Of the three remaining charges, one was under

section 151 and one under

section 152 of theCriminal Code. The charges identified a four-and-half-year span during which the victim was aged nine to 13. The instances of sexualabuse were frequent, varied and highly troubling. The accused was the father of the victim and had no criminal record. It is fair toconclude that more aggravating factors were present in this case than in that of [A.A.]. A global consecutive sentence of 14 years wasimposed at first instance and undisturbed on appeal.

66. Turning to the offences of possessing and making child pornography, I take note of R. v. Strowbridge, 2020 NBQB 193 . Inthat case, the accused entered guilty pleas to three charges and had no criminal record. He made child pornography available to othersvia Kik Interactive and was found to have a child pornography collection consisting of 410 images and 18 videos. Morrison J. acceptedthe joint recommendation of counsel and imposed a global consecutive sentence of two years plus one day. 67. Though it pre-dates R. v. Friesen, and with the attendant caveat which accompanies that, I have considered R. v.

Taylor, 2019NBQB 262 . In that case, a 70-year-old accused plead guilty to possession and making available child pornography. His childpornography collection consisted of 1256 images and 233 videos. A global consecutive sentence of 36 months was imposed byStephenson J. 68. I have also considered R. v. Inksetter, 2018 ONCA 474 , which also pre-dates R. v. Friesen. In that case, the accused wascharged with possession and making available child pornography.

His collection consisted of 28,052 images and 1,144 videos and wasdescribed as “one of the largest and worst collections of child pornography that the Ottawa Police Service had ever uncovered”. Theaccused entered early guilty pleas, had no criminal record and was very remorseful. The sentence imposed at first instance was found tobe too lenient and the Court of Appeal of Ontario substituted a 42-month global consecutive sentence.

Though the size of [A.A.]’s childpornography collection approaches that which was present in this case, the nature of the images and videos found in [A.A.]’s possessiondiffer considerably. It was found in R. v. Inksetter that ninety-five percent of the material depicted actual penetration and other highlyexplicit activity, including bondage, bestiality and penetration involving children as young as one. 69.

As each counsel acknowledged during their respective submissions, totality figures prominently in [A.A.]’s sentencing as does theguidance of the Court of Appeal of New Brunswick that I earlier canvassed as it relates to the application of this important sentencingprinciple. Below, I have outlined the sentence I impose respecting each offence. After doing so, I shall explain the effect totality has hadon sentence. 70.

Having considered the submissions of counsel, the relevant case law, the aggravating and mitigating factors, the background of[A.A.], his rehabilitative potential and the 11 Victim Impact Statements, I am left to conclude that the following constitutes a fit andappropriate sentence for [A.A.]: a. On the charge under subsection 151(

a) of the Criminal Code, I sentence [A.A.] to eight years to run consecutive to any othersentence; b. On the charge under subsection 152(

a) of the Criminal Code, I sentence [A.A.] to eight years to run concurrently to any othersentence; c. On the charge of possession of child pornography, contrary to paragraph 163.1(4)(

a) of the Criminal Code, I sentence [A.A.] tofour years to run consecutive to any other sentence. In passing this sentence, I note the obligation set out in paragraph 718.3(7)(

a) of theCriminal Code; d. On the charge of making child pornography, contrary to paragraph 163.1(2) of the Criminal Code, I sentence [A.A.] to four yearsto run concurrent to any other sentence. 71. Taken together, the global consecutive sentence imposed in this case is 12 years less [A.A.]’s remand credit of 762 days. 72.

When I consider the many aggravating factors alongside the frequency, duration and magnitude of sexual abuse and psychologicaltorment of a severe and violent nature that was perpetrated by [A.A.] against [C.C.] over an eight year period, which amounted to severalhundred unique and traumatic occurrences, I am left to conclude that, but for totality, the sentence I would have imposed would havebeen much closer to the 10 year maximum that applies to the offences under subsections 151(

a) and 152(

a) by reason of the fact that partof the applicable date ranges precede the 2015 amendments to the Criminal Code. Among other things, the 2015 amendments saw themaximum sentence for these offences increased by Parliament from 10 to 14 years. Totality has also informed my decision to impose aconcurrent sentence on the charge under subsection 152(

a) of the Criminal Code. 73. Similar observations apply to the charges of possessing and making child pornography. In the pre-Friesen case of R. v. Taylor, aglobal consecutive sentence of 36 months was imposed in relation to an accused whose collection amounted to less than ten percent of[A.A.]’s. In R. v. Strowbridge, the accused’s collection was even smaller still but he nonetheless received two years plus one day. Thisdecision was rendered shortly after R. v. Friesen.

As it pertains to the charge of making child pornography, I have decided that it ought torun concurrently owing to the application of the totality principle. 74. It remains that [A.A.]’s child pornography collection was staggeringly large as was its reach from the perspective of victimization.One might suggest that my sentence is heavy when calibrated, for example, against the Court of Appeal of Ontario’s decision in R. v.Inksetter; however, I am very mindful of the sentencing shift ushered in by R. v. Friesen.

Moreover, I am confident that a substantiallyhigher sentence would today be imposed on that same set of facts given the sentencing framework that now applies. 75. If I were fashioning a global consecutive sentence for [A.A.] in circumstances where I was not bound by totality considerations, Iam convinced a global consecutive sentence in the 16-to-18-year range would be in order on the facts of this case. Suffice it to say that Ihave given the sentence I impose a careful “second look” in keeping with the Court of Appeal of New Brunswick’s direction in Brown v.R.

Though this sentence is admittedly a considerable one, I am comfortable in concluding that its global magnitude is faithful to the

totality principle because its combined effect does not rise to the level of being “unduly long”, “disproportionate” or “crushing”. Moreover, it is in harmony with the parity and proportionality principles in light of the case law I have canvassed. 76 . This brings me to the final task of sentencing [A.A.], being the ancillary orders to be imposed in this case. I make the following ancillary orders: a. An order pursuant to

Section 161 of the Criminal Code is imposed for life with the conditions that [A.A.] be prohibited from: i. attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre; ii. being within two kilometres of any dwelling-house where [C.C.] ordinarily resides or of any other place specified in the order; iii. 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; iv. having any contact - including communicating by any means - with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or v. using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court. b.

An order pursuant to subsection 487.051 of the Criminal Code authorizing the taking of the number of samples of bodily substances from [A.A.] that is reasonably required for the purpose of forensic DNA analysis; c. An order pursuant to paragraph 490.013(2) (

b) of the Criminal Code requiring [A.A.] to comply with the Sex Offender Information Registration Act for a duration of 20 years; d. A weapons prohibition order pursuant to

section 109 of the Criminal Code for a duration of 10 years; e. A no-contact order pursuant to

section 742.21 of the Criminal Code which precludes [A.A.] from having any direct or indirect contact with [B.B.] or [C.C.] while he is incarcerated, and f. An order of forfeiture pursuant to subsection 164.2(1) of the Criminal Code and an order of return pursuant to paragraph 490(9) (

c) of the Criminal Code shall each be prepared by the Crown in the appropriate form and submitted to the Court for my consideration and execution. 77 . There will be no Victim Fine Surcharges given the nature of the sentence imposed, [A.A.]’s lack of income and the fact [A.A.] has been held in pre-trial custody for some time. 78 . Absent any points requiring clarification, that concludes the sentencing of [A.A.]. I wish you well going forward and hope that you will avail yourself of the resources offered at the institution where you will be serving your sentence to pursue rehabilitation and other opportunities that will hopefully position you for success upon your release. BRITTAIN, PCJ