2013 NBCA 12, 2013 NBCA 12

Editor’s Note : Corrigendum released on March 12, 2013. Original judgment has been corrected with text of corrigendum appended. COURT OF APPEAL OF NEW BRUNSWICK 38-12-CA R.P. APPELLANT R.P. APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE R.P. v. R., 2013 NBCA 12 R.P. c.

R., 2013 NBCA 12 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge Richard L’honorable juge Bell L’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: December 1, 2011 (conviction) March 2, 2012 (sentence) Appel d’une décision de la Cour du Banc de la Reine : Le 1 er décembre 2011 (déclaration de culpabilité) Le 2 mars 2012 (détermination de la peine) History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: November 14, 2012 Appel entendu : Le 14 novembre 2012 Judgment rendered: February 14, 2013 Jugement rendu : Le 14 février 2013 Counsel at hearing: For the appellant: Leslie M. Matchim and Mikaël H.H. Bernard For the respondent: Cameron H. Gunn Avocats à l’audience : Pour l’appelant : Leslie M. Matchim et Mikaël H.H. Bernard Pour l’intimée : Cameron H. Gunn THE COURT The appeal is dismissed. The following is the judgment delivered by THE COURT I. Introduction [ 1 ] R.P. seeks leave to appeal a sentence imposed in the Court of Queen’s Bench after he pled guilty to sexual assault ( s. 271(1) (

a) of the Criminal Code ), invitation to sexual touching ( s. 152 ) and sexual interference ( s. 151 ). The charges were the result of interactions with F.W., who considered Mr. P. as an uncle, when she was between the ages of 10 and 14. The judge sentenced Mr. P. to imprisonment for a total of 45 months, calculated by the imposition of 36 months for the first count, and six months consecutive on each of the two remaining counts, and giving him credit of 90 days for time spent in remand. [ 2 ] After hearing arguments from the parties, we granted leave to appeal, but dismissed the appeal with reasons to follow.

Here are those reasons. II. Background [ 3 ] The offences occurred when Mr. P. was living with his mother in Dalhousie, New Brunswick. At that time, Mr. P. and his wife were separated and their son, who resided with his mother, would often visit on weekends. During some of these visits, his son’s

second cousin K.P., and K.P.’s older sister F.W., would also come to the house and stay overnight. It is on those occasions that theoffences occurred. [4] During those sleepovers, F.W. slept in Mr. P.’s bedroom, either in the same bed or on the floor beside him, while the twoboys slept in another room. Since F.W. was interested in becoming a model, Mr. P. offered to take pictures of her. However, Mr. P.abused F.W.’s trust in him, and the photographs he took showed F.W. wearing see-through lingerie, g-strings and thongs. Mr.

P. wouldalso have F.W. pose in various positions and arrange the lingerie to reveal her genitalia, breasts and buttocks. Mr. P. also touched F.W.’svagina and asked her to touch his penis. On one occasion Mr. P. performed cunnilingus on her and, on another, he shaved her pubic hair. [5] When F.W. was approximately 12 years old, Mr. P. took her and the two boys on a camping trip, and all four of them slept inthe same tent. At one point, Mr. P. attempted to have sexual intercourse with F.W., but she managed to push him away. Mr.

P.immediately told F.W. to calm down, that she was “having a wet dream,” and then forced her to masturbate him. After this event, Mr. P.persuaded F.W. that no one would believe her if she were to complain. Nevertheless, F.W. ceased to attend sleepovers at Mr. P.’sresidence after the camping incident. III. Grounds of Appeal [6] The thrust of Mr. P.’s argument on appeal is that the trial judge committed an error in principle by neglecting to follow theranges of incarceration for similar offences as set out in R. v. Sobey (1997), (NB CA), 191 N.B.R. (2d) 3, [1997]N.B.J.

No. 316 (C.A.) (QL), resulting in a demonstrably unfit and excessive sentence. [7] For the reasons that follow, we are of the view that neither the approach of the trial judge nor the resulting sentenceconstitutes an error that would warrant intervention by this Court. IV. Standard of Review [8] In the case of an appeal against sentence, this Court has repeated on many occasions that considerable deference is owed tothe sentencing judge. In R. v.

Steeves, 2010 NBCA 57, 360 N.B.R. (2d) 88, Drapeau C.J.N.B. framed the applicable standard of reviewas follows: In sum, a court of appeal is not at liberty to substitute its view of fitness for that of the sentencing judge unless the sentence imposed isthe product of either an error of law or an error in principle, or unless it is clearly unreasonable (see R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52 (QL), at paras. 46-48; R. v. Solowan, [2008] 3 S.C.R. 309, [2008] S.C.J. No. 55 (QL),2008 SCC 62, at para. 16; R. v. L.M. [2008] 2 S.C.R. 163, [2008] S.C.J.

No. 31 (QL), 2008 SCC 31, at paras. 14-15; and R. v. C.A.C.(2009), 349 N.R.B. (2d) 265, [2009] N.B.J. No. 342 (QL), 2009 NBCA 68 (Bell, J.A. for the Court, at para. 4)). If the sentence at issueis the result of reversible error, the court of appeal bears the burden of prescribing the punishment that it considers fit in thecircumstances. [para. 25] [Emphasis added.] [9] Regarding alleged errors in principle, the following guidance was given in R. v.

R.P., 2001 NBCA 115, 245 N.B.R. (2d) 179: As for an error in principle, it typically involves one or more of the following: the application of wrong sentencing principles, a failure toconsider relevant factors or the taking into account of irrelevant considerations. As well, there will be cases where the failure to giveproper weight to each relevant circumstance will amount to an error in principle. (Our court will necessarily be slow to find an error ofthis nature for, if it was otherwise, professions of deference would soon ring hollow.) [...] [para. 14] V. Analysis

A. The Precedential Value of Sobey [ 10 ] Because Mr. P.’s argument relies so heavily on his understanding of this Court’s decision in Sobey , it is helpful to place this case in its proper context. [ 11 ] In Sobey , this Court was called upon to review the imposition of a 23-month total sentence for seven sex-related offences committed on three young girls between 1969 and 1976.

The first victim had been subjected to two instances of fondling when she was 10 years old; the second, her sister, was touched sexually on two occasions when she was between the ages of six and 12; and the third was subjected to at least two instances of sexual touching while between the ages of six and 13, and one occasion of sexual intercourse when she was approximately 12 years of age. The Crown appealed on the grounds that the global sentence was manifestly inadequate and that the sentencing judge had failed to properly emphasize the principles of general deterrence, retribution and denunciation.

This Court allowed the appeal. [ 12 ] Ryan J.A., for a unanimous Court, held that the total sentence imposed failed to “properly emphasize society’s abhorrence of the rape of a child.” Specifically, the 15-month sentence imposed for the count of intercourse was increased to three years, with the further instruction that “[a]bsent unusual circumstances, the norm should be a term to be served in a federal institution. General deterrence must be emphasized in the circumstances of this case” (para. 5). Furthermore, Ryan J.A. stated that, without the mitigating factors of Mr.

Sobey’s obvious remorse and attempts to seek treatment, he would have considered a sentence of four or five years on that count alone.

In the end result, the Court also increased the sentence for a count pertaining to digital penetration from four to eight months, resulting in a total sentence of four years. [ 13 ] However, the appellant in this case relies not on the decision in Sobey itself, but on the sentencing examples provided in its four “annexes.” In an effort to provide guidance to sentencing judges in cases of sexual assault, Ryan J.A. provided a total of 45 case summaries, categorized by the nature of the sexual contact involved. Based on these examples, Mr.

P. asserts that Sobey “is relevant as a benchmark for sentencing purposes in the present case and in general for various ranges of sexual assaults in New Brunswick.” Although the annexes in Sobey certainly provided a useful understanding of sentencing trends at the time of its release, we would caution against a strict adherence to the examples provided therein as a “benchmark” for sentences to be imposed in the present day. [ 14 ] In the final paragraph of his decision, Ryan J.A. introduces these annexes as follows: Forming part of this judgment is a compendium of New Brunswick decisions relating to sexual offences and the penalties that have been imposed.

I have examined and used them in coming to my conclusion with respect to fitness. The case law suggests ranges within which different types of sexual assaults tend to fall. Sentencing judges, however, are acutely aware that each individual, when being sentenced, is entitled to the undivided attention of the judge in fixing the penalty to the crime while, at the same time, considering the characteristics of the accused including any prospects of rehabilitation.

For that reason, and the fact that there is no minimum penalty prescribed under the Code for these sexual assaults, these decisions are merely a guide . [para. 23] [Emphasis added.] As recognized in Sobey itself, judges must be cautious about relying too heavily on a judicial sentencing “guide”, not only because each case must be decided on its own facts, but also because the intentions of Parliament form an integral part of the landscape in which a sentence is imposed. [ 15 ] In the 15 years since Sobey was decided by this Court, there have been numerous changes to the Criminal Code which emphasize the seriousness of sexual crimes against children.

As of November 1, 2005, minimum sentences were introduced for the offences of sexual interference and invitation to sexual touching (ss. 151 and 152) and, with the coming into force of the Safe Streets and Communities Act , S.C. 2012, c. 1 on August 9, 2012, these minimums have been increased from 45 days to one year.

The amendments in 2005 also expanded the offence of sexual exploitation (s. 153) so as to target all adults “in a relationship with a young person that is exploitative,” rather than those specifically “in a position of trust.” Thirdly, 2005 saw the introduction of ss. 718.01 and 718.2( a )(ii.1), which stipulate that denunciation and deterrence are to be the primary considerations when an offence involves the abuse of a person under 18 years of age and that such abuse is to be considered an aggravating factor.

Less than three years later, on May 1, 2008, the age of consent was raised from 14 to 16 years, thereby extending the scope of criminal conduct against children even further. Most recently, the 2012 amendments mentioned above have created new minimum penalties for seven offences related to child exploitation, including mandatory imprisonment for one year in the case of sexual assaults against a complainant under the age of 16. [ 16 ] Similarly, there has been significant growth in the number of offences designed to target the abuse of children perpetrated

primarily over the internet, through child pornography and “luring.” Although the production, distribution and possession of child pornography have been offences since 1993 (under s. 163.1), child luring (s. 172.1) was introduced nearly a decade later, in 2002. In 2005, Bill C-2 brought even more changes, including the addition of language such as “transmission”, making available” and “accessing” to the scope of offences under s. 163.1. The same Bill also increased the maximum penalty for child pornography offences from six to 18 months on

summary conviction and created mandatory minimum sentences (one year for production and distribution (ss. 163.1(2) and (3)) and 45 days for possession and accessing (s. 163.1(4) and (4.1)) on indictment. From even this short

summary of legislative changes since the time Sobey was decided, it is clear that the legal landscape has changed in terms of sexual offences against children. [ 17 ] It is also useful to emphasize that the cases compiled in Sobey necessarily pre-date the decision itself, and reach as far back as 1985. In fact, 25 of the 45 cases cited in the annexes to Sobey were decided at least 20 years ago. [ 18 ] Nevertheless, this is not the case in which to establish a new “starting point” for sentencing in the context of sexual assaults against minors.

This is so for several reasons: (1) we were not presented with jurisprudence indicating current sentencing trends in New Brunswick, other provinces, or as reflected in recent holdings of the Supreme Court of Canada; (2) we have not heard arguments regarding the impact of various amendments to the Criminal Code since 1997 on the sentences found in Sobey ; and (3) both parties in this case proceeded on the basis that Sobey was the “seminal case” on this topic. [ 19 ] In light of the emphasis Sobey placed on denunciation and deterrence in the context of sexual offences against children, it would be a clear misstatement of its precedential value to suggest that judges should feel bound by specific sentencing ranges when there may be compelling reasons to deviate from them in the modern context.

Put simply, Sobey was decided 15 years ago and, while it was a guide for the time, it is not a guide for all time. B. The sentence imposed [ 20 ] At the outset of her decision, the sentencing judge acknowledged the fundamental principle that the “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. In her subsequent assessment of the “gravity of the offence”, the sentencing judge characterized the “major sexual offences” committed by Mr. P. as “a methodical, planned and deliberate violation of [F.W.]’s sexual integrity.” She also noted that Mr.

P. and F.W. were related (albeit by marriage), that there is an approximately 20-year age difference between them, and that Mr. P. occupied a position of trust toward F.W. at the time of the offences. Moreover, Mr. P.’s criminal behaviour progressed over a period of three years, and had a direct impact on F.W. and her family . After listening to the submissions of counsel and reviewing the applicable sentencing principles, the judge sentenced Mr. P. to a total of four years imprisonment, less time served in remand. [ 21 ] Mr.

P. alleges that the sentencing judge erred in principle by failing to make reference to any of the jurisprudence she had been given in arriving at her decision. More specifically, he asserts that the global sentence of four years is not in accordance with similar cases set out in Sobey , such that it fails to respect the principle articulated in s. 718. 2(

b) that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” [ 22 ] However, a review of the transcript reveals that the sentencing judge considered all of the materials before her , and even stated that the circumstances of the case at bar served to distinguish cases presented on behalf of the Crown which resulted in sentences of seven years.

Quite simply, the sentencing judge thoroughly canvassed the applicable sentencing principles and relevant jurisprudence before arriving at her decision and her analysis reveals no error. [ 23 ] Furthermore, we note that Mr. P. urged both the sentencing judge and this Court to consider the gravity of the offences to be “at the lower end” because no penetration occurred. He claimed to find support for this argument in the categorization of the annexes in Sobey . However, this is not what Sobey stands for. While the form of an assault will often inform an analysis of its gravity, it is by no means determinative.

In Sobey itself, Ryan J.A. distinguished between isolated incidents of fondling and

an act of intercourse. It should go without saying that, in the present case, the victim’s ability to thwart the attempt at penetration did nothing to minimize the impact of prolonged exploitation by a family member. The sentencing judge clearly recognized this fact, and there is absolutely no basis upon which to interfere with her characterization of the offences committed by Mr. P. [ 24 ] Finally, the total sentence imposed for these offences is in no way unreasonable or excessive, particularly in light of the emphasis on denunciation and deterrence required by s. 718.01.

[ 25 ] Since none of the criteria for intervention as set out in Steeves can be made out, this Court is not at liberty to interfere with the sentence imposed. VI. Disposition [ 26 ] It is for these reasons that we dismissed the appeal. ________________________________ J.C. MARC RICHARD, J.A. ________________________________ B. RICHARD BELL, J.A. ________________________________ KATHLEEN A. QUIGG, J.A

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 38-12-CA R.P. APPELLANT R.P. APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE R.P. v. R., 2013 NBCA 12 R.P. c.

R., 2013 NBCA 12 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge Richard L’honorable juge Bell L’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: December 1, 2011 (conviction) March 2, 2012 (sentence) Appel d’une décision de la Cour du Banc de la Reine : Le 1 er décembre 2011 (déclaration de culpabilité) Le 2 mars 2012 (détermination de la peine) History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite

Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O. Appeal heard: November 14, 2012 Appel entendu : Le 14 novembre 2012 Judgment rendered: February 14, 2013 Jugement rendu : Le 14 février 2013 Date of Corrigendum: March 12, 2013 Date de l’avis de correction : Le 12 mars 2013 Counsel at hearing: For the appellant: Leslie M. Matchim and Mikaël H.H. Bernard For the respondent: Cameron H. Gunn Avocats à l’audience : Pour l’appelant : Leslie M. Matchim et Mikaël H.H. Bernard Pour l’intimée : Cameron H. Gunn THE COURT CORRIGENDUM Please note that in paragraph 1 of this decision, the reference to s. 270(1)(

a) is corrected by replacing it with s. 271(1) ( a ). [ 27 ] R.P. seeks leave to appeal a sentence imposed in the Court of Queen’s Bench after he pled guilty to sexual assault ( s. 271(1) (

a) of the Criminal Code ), invitation to sexual touching ( s. 152 ) and sexual interference ( s. 151 ). […] [Version française] LA COUR AVIS DE CORRECTION

Veuillez noter qu’au paragraphe 1 de ce jugement, l’alinéa 270(1)

a) a été corrigé, et est maintenant remplacé avec l’ alinéa 271(1) a ). [1] R.P. demande l’autorisation d’appeler de la peine à laquelle il a été condamné par la Cour du Banc de la Reine, après s’être reconnu coupable d’agression sexuelle ( al. 271(1)

a) du Code criminel ), de contacts sexuels ( art. 151 ) et d’incitation à des contacts sexuels ( art. 152 ). […] ________________________________ J.C. MARC RICHARD, J.A. ________________________________ B. RICHARD BELL, J.A. ________________________________ KATHLEEN A. QUIGG, J.A.