Her Majesty The Queen Appellant v. Justyn Kyle Napoleon Friesen, 2020 SCC 9

SUPREME COURT OF CANADA Citation: R. v . Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424 Appeal Heard and Judgment Rendered: October 16, 2019 Reasons for Judgment: April 2, 2020 Docket: 38300 Between: Her Majesty The Queen Appellant and Justyn Kyle Napoleon Friesen Respondent - and - Attorney General of Ontario, Attorney General of British Columbia, Attorney General of Alberta, Criminal Trial Lawyers’ Association and Legal Aid Society of Alberta Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Joint Reasons for Judgment: (paras. 1 to 183) Wagner C.J. and Rowe J. (Abella, Moldaver, Karakatsanis, Côté, Brown, Martin and Kasirer JJ. concurring) Her Majesty The Queen Appellant v.

Justyn Kyle Napoleon Friesen Respondent and Attorney General of Ontario, Attorney General of British Columbia, Attorney General of Alberta, Criminal Trial Lawyers’ Association and Legal Aid Society of Alberta Interveners Indexed as: R. v. Friesen 2020 SCC 9 File No.: 38300. 2019: October 16; 2020: April 2.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. on appeal from the court of appeal for manitoba Criminal law — Sentencing — Considerations — Sentencing ranges and starting points — Sexual offences against children — Sentencing judge imposing six-year global sentence following accused’s guilty plea to offences of sexual interference with young child and attempted extortion of child’s mother — Court of Appeal reducing sentence to four years and six months — Whether sentencing ranges for sexual offences against children are still consistent with Parliamentary and judicial recognition of severity of such crimes — Whether Court of Appeal erred by interfering with sentence imposed by sentencing judge.

F encountered the victim’s mother on an online dating website. One night, the mother brought F to her residence, where she and F engaged in consensual sexual intercourse in the mother’s bedroom. F then told the mother to bring the victim, her four-year-old daughter, into the bedroom. F and the mother subjected the victim to sexual violence. Her screams and cries awoke the mother’s friend who removed the victim from the room. F then threatened the mother that unless she brought the victim back, he would tell the mother’s friend that the mother had previously sexually abused her one-year-old son.

F pled guilty to sexual interference with the victim and attempted extortion of the mother. The sentencing judge imposed a six-year sentence for sexual interference and a concurrent six-year sentence for attempted extortion. He determined that the four-to-five year sentencing starting point identified previously by the Manitoba Court of Appeal for major sexual assault committed on a young person within a trust relationship was appropriate even though F did not stand in a position of trust to the victim.

The Court of Appeal found that the sentencing judge had erred in principle by applying the starting point, which presumed the existence of a trust relationship, when the sentencing judge had found that there was none. The Court of Appeal conducted a fresh analysis and reduced the sentence to four and one-half years’ incarceration for sexual interference and to eighteen months’ incarceration to be served concurrently for attempted extortion. The Crown appeals to the Court from the Court of Appeal’s interference with the sentence for the sexual interference offence.

Held : The appeal should be allowed and the sentence imposed by the sentencing judge for sexual interference restored. Appellate courts must generally defer to sentencing judges’ decisions and can only intervene to vary a sentence if (1) the sentence is demonstrably unfit or (2) the sentencing judge made an error in principle that had an impact on the sentence. Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor.

If appellate intervention is justified, the court will apply the principles of sentencing afresh to the facts, without deference to the existing sentence, even if that sentence falls within the applicable range. Where an appellate court has found that an error in principle had an impact on the sentence, it is not a further precondition to appellate intervention that the existing sentence is demonstrably unfit or falls outside the range of sentences imposed in the past.

All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similar sentences. Parity is an expression of proportionality and gives meaning to proportionality in practice.

A proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases. Sentencing precedents reflect the range of factual situations in the world, embody the collective experience and wisdom of the judiciary, and are the practical expression of both parity and proportionality. Appellate courts have a dual role in sentence appeals.

They correct errors in sentencing to ensure both that the principles of sentencing are correctly applied and that sentences are not demonstrably unfit, and they have a role in developing the law and providing guidance. Appellate courts will distill many precedents into a single statement, a range of sentences or perhaps a starting point, that sentencing judges can more readily use.

As a general rule, appellate courts should give sentencing judges the tools to depart from past precedents and craft fit sentences when a body of precedent no longer responds to society’s current understanding and awareness of the gravity of a particular offence and blameworthiness of particular offenders or to the legislative initiatives of Parliament. Canadian appellate courts often provide guidance in the form of ranges of sentences, which are summaries of the minimum

and maximum sentences imposed in the past and serve as guides for the application of all relevant principles and objectives. Some courts use starting points as an alternative. However, sentencing ranges and starting points are guidelines, not hard and fast rules. Appellate courts cannot treat the departure from or failure to refer to either as an error in principle. Nor can they intervene simply because the sentence is different from the sentence that would have been reached had the range or starting point been applied.

Appellate courts cannot interpret or apply the standard of review to enforce ranges or starting points; to do so would be to usurp the role of Parliament in creating categories of offences. Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code .

At the sentencing stage, in order to effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause and give effect to both in imposing a sentence. This will help bring sentencing law into line with society’s contemporary understanding of the nature and gravity of sexual violence against children and will ensure that past biases and myths do not filter into the sentencing process.

Parliament’s creation of the modern legislative scheme of sexual offences against children shifted the focus of the sexual offences scheme from sexual propriety to wrongful interference with sexual integrity. 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. Emphasis on these interests require courts to focus their attention on emotional and psychological harm, not simply physical harm.

In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle, as these factors impact both the gravity of the offence and the degree of responsibility of the offender and understanding them is key to imposing a proportionate sentence. Courts must impose sentences that are commensurate with the gravity of sexual offences against children and that reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers, and communities.

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. 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.

Courts must also take the modern recognition of the wrongfulness and harmfulness of sexual violence against children into account when determining the offender’s degree of responsibility. Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child, because it involves the wrongful exploitation of the child by the offender, and because children are so vulnerable.

Courts must give proper weight in sentencing to the offender’s underlying attitudes because they are highly relevant to assessing the offender’s moral blameworthiness and to the sentencing objective of denunciation. The fact that the victim is a child increases the offender’s degree of responsibility. Parliament has determined that sentences for sexual offences against children should increase to match its view of the gravity of such offences. It has increased maximum sentences for these offences and prioritized denunciation and deterrence in sentencing.

Parliament’s decision to repeatedly increase maximum sentences for sexual offences against children should be understood as shifting the distribution of proportionate sentences for these offences. To respect Parliament’s decision, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. Parliament’s decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 of the Criminal Code confirms the need for courts to impose more severe sanctions for sexual offences against children.

A national starting point or sentencing range for sexual offences against children should not be created by the Court. The appropriate length and the setting of sentencing ranges or starting points are best left to provincial appellate courts. Nonetheless, to ensure that sentences for sexual offences against children correspond to Parliament’s legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes, guidance on three specific points is required.

First, upward departure from prior precedents and sentencing ranges should occur for sexual offences against children because Parliament increased the maximum sentences for these offences and because society’s understanding of the gravity and harmfulness of these offences has deepened. Courts are justified in departing from dated precedents that do not reflect society’s current awareness of the impact of sexual violence on children in imposing a fit sentence.

There is concern about sentencing ranges based on precedents that appear to restrict sentencing judges’ discretion by imposing caps on sentences that can only be exceeded in exceptional circumstances. Sexual offences against children can cover a wide variety of circumstances and appellate guidance should make clear that sentencing judges can respond to this reality by imposing sentences that reflect increases in the gravity of the offence and the degree of responsibility of the offender. Imposing proportionate sentences will frequently require substantial sentences.

Parliament’s statutory amendments have strengthened that message. Mid-single digit penitentiary terms for sexual offences against children are normal and upper-single digit and double digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. A maximum sentence should be imposed whenever the circumstances warrant it. Second, sexual offences against children should generally be punished more severely than sexual offences against adults, as Parliament has determined by clear indication in the Criminal Code .

Accordingly, provincial appellate courts are directed to revise and rationalize sentencing ranges and starting points where they have treated sexual violence against children and sexual violence against adults similarly. Third, treating the offence of sexual interference with a child as less serious than that of sexual assault of a person under the age of 16 is an error of law. Parliament has established the same maximum sentences for both offences.

The elements of the offences 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. In order to promote the uniform application of the law of sentencing, the following non-exhaustive significant factors to determine a fit sentence for sexual offences against children must be considered. First, the higher the offender’s risk to reoffend, the more the court needs to emphasize the sentencing objective of separating the offender from society to protect vulnerable children from wrongful exploitation and harm.

Second, 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. Any breach of trust is likely to increase the harm to thevictim and thus the gravity of the offence, and it also increases the offender’s degree of responsibility. Third, sexual violence againstchildren that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflectthe full cumulative gravity of the crime and the offender’s increased degree of responsibility.

Fourth, the age of the victim is also asignificant aggravating factor because children who are particularly young are even more vulnerable to sexual violence. The moralblameworthiness of the offender is enhanced in such cases. Fifth, defining a sentencing range based on the specific type of sexual activityat issue poses several dangers.

In particular, courts must be careful to avoid the following errors: attributing intrinsic significance to theoccurrence or non-occurrence of sexual acts based on traditional notions of sexual propriety; assuming that there is correlation betweenthe type of physical act and the harm to the child; failing to recognize the wrongfulness of sexual violence in cases where the degree ofphysical interference is less pronounced; and understanding the degree of physical interference factor in terms of a type of hierarchy ofphysical acts.

Sixth, a child’s participation is not a mitigating factor, nor should it be a legally relevant consideration at sentencing. Inparticular, a child’s non-resistance should not be equated to “de facto consent”; a victim’s participation should not distract the court fromthe harm that the victim suffers as a result of sexual violence; a breach of trust or grooming that led to the victim’s participation is anaggravating factor; and, adults always have a responsibility to refrain from engaging in sexual violence towards children.

In the present case, the Court of Appeal based its intervention on an error in principle that the sentencing judge did not make.It is not an accurate characterization of the sentencing judge’s reasons that his choice of the four-to-five-year starting point demonstratedhe relied on the aggravating factor of abuse of a position of trust that he had found did not exist. Rather, he determined that it wasappropriate to employ a four-to-five-year starting point because the aggravating circumstances of the case warranted it.

The sentencingjudge sought to exercise his discretion in a way that gave effect to the principles of sentencing, in light of the circumstances of the case,and his decision should be accorded deference. He was entitled to conclude that the aggravating factors were so serious as to place thecase on par with the starting point the Manitoba Court of Appeal had set for major sexual assault committed on a young person within atrust relationship.

Since the Court of Appeal did not identify any other error and concluded the sentencing judge appropriately balancedthe aggravating and mitigating factors, it should not have intervened. This case exemplifies the danger of treating starting points asbinding laws. Rather than focusing on whether the sentencing judge chose the right starting point, the Court of Appeal should havefocused on whether the sentence was fit and, most fundamentally, whether the sentencing judge properly applied the principles ofsentencing. The sentence was also not demonstrably unfit.

Far from being so excessive, the sentence was on the lenient end of thespectrum of fit sentences. The sentencing judge took a careful approach to many of the significant factors previously discussed: heproperly recognized the immediate and long-term harm to the victim that F’s conduct caused; appreciated the incredibly aggravatingnature of the victim’s young age; and properly emphasized separation of the offender from society. The fact that the sentencing judgefound that F did not stand in a position of trust does not make the sentence unfit.

F’s moral blameworthiness is heightened because heknowingly decided to exploit the mother’s relationship of trust and thus was complicit in the mother’s breach of trust. Even if the motherhad not stood in a position of trust, the fact that F coordinated the sexual violence against the victim with the mother would be anaggravating factor. The sentencing judge properly weighed the mitigating factors against the aggravating factors and the need toprioritize denunciation and deterrence as well as separation of F from society because of the high risk he posed to children.

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Markham, Ont.: LexisNexis, 2009. Ruby, Clayton C., et al. Sentencing , 9th ed. Toronto: LexisNexis, 2017. Rudin, Jonathan. “Eyes Wide Shut: The Alberta Court of Appeal’s Decision in R. v. Arcand and Aboriginal Offenders” (2011), 48 Alta. L. Rev. 987. Silver, Lisa. Sentencing to the Starting Point: The Alberta Debate , May 23, 2019 (online: https://ablawg.ca/2019/05/23/sentencing-to- the-starting-point-the-alberta-debate/ ; archived version: https://www.scc-csc.ca/cso-dce/2020SCC-CSC9_3_eng.pdf). Todd, Debra. “Sentencing of Adult Offenders in Cases Involving Sexual Abuse of Children: Too Little, Too Late?

A View From the Pennsylvania Bench” (2004), 109 Penn. St. L. Rev. 487. Wright, Margaret M. Judicial Decision Making in Child Sexual Abuse Cases . Vancouver: UBC Press, 2007. APPEAL from a judgment of the Manitoba Court of Appeal (Monnin, Beard and leMaistre JJ.A.), 2018 MBCA 69 , [2018] M.J. No. 164 (QL), 2018 CarswellMan 258 (WL Can.), varying a sentence imposed for sexual interference and attempted extortion. Appeal allowed. Rekha Malaviya and Renée Lagimodière , for the appellant. Gerri Wiebe and Ryan McElhoes , for the respondent. Lisa Joyal , for the intervener the Attorney General of Ontario.

John R. W. Caldwell , for the intervener the Attorney General of British Columbia. Joanne B. Dartana , for the intervener the Attorney General of Alberta. Daniel J. Song , for the intervener the Criminal Trial Lawyers’ Association. Dane Bullerwell , for the intervener the Legal Aid Society of Alberta. TABLE OF CONTENTS Paragraph I. Overview 1 II. Factual Background 6 A. The Offences 6 B. Information About Friesen 13 III. Proceedings Below 16 A. Provincial Court of Manitoba (Judge Stewart), Reasons for Sentence, March 9, 2017 16 B. Manitoba Court of Appeal (Monnin, Beard and leMaistre JJ.A.), 2018 MBCA 69 20 IV.

Issues 23 V. Analysis 25 A. Stan dard of Review 25 B. Principles Governing Appellate Review and Parity 30

(1) Proportionality and Parity 30

(2) Role of Appellate Courts 34

(3) Ranges of Sentence and Starting Points 36

(4) Concerns About Starting Points 40 C. Sentencing Principles for Sexual Offences Against Children 42

(1) Contemporary Understanding of Sexual Violence Against Children 46

(2) Sentencing Must Reflect the Contemporary Understanding of Sexual Violence Against Children 74

(3) Parliament Has Mandated That Sentences for Sexual Offences Against Children Must Increase 95

(4) Specific Guidance on Sentence Increases 106

(5) Significant Factors to Determine a Fit Sentence 121

(6) Consecutive Sentences and Totality 155 D. Application 159

(1) No Error in Principle That Affected the Sentence 159

(2) Sentence Not Demonstrably Unfit 166

(3) Additional Aggravating Factors 176

(4) Lack of Clarity Regarding Concurrent vs. Consecutive Sentences 181 VI. Disposition 183 Appendix The reasons for judgment of the Court were delivered by The Chief Justice and Rowe J. — I. Overview [ 1 ] Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence. Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year.

This case is about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children. [1] [ 2 ] The accused pled guilty to sexual interference with a young child and attempted extortion of the child’s mother. The sentencing judge determined that a six-year global sentence was appropriate. The Court of Appeal reduced the sentence to four and one- half years. We would allow the Crown’s appeal and restore the six-year sentence. [ 3 ] We wish to convey three overarching points in these reasons.

First, we affirm the standard of review for sentencing set out in R. v.

Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089, and especially the guidance about how an appellate court should proceed when it identifies an error in principle. [ 4 ] Second, we clarify the limits that appellate deference imposes on both sentencing ranges and starting points, and outline particular concerns associated with starting point sentencing. [ 5 ] Third, 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. II. Factual Background A. The Offences [ 6 ] Friesen encountered the mother on an online dating website on June 29, 2016. On July 17, 2016, at about 1:00 a.m., the mother picked Friesen up from the bar where he had spent the evening and brought him to her residence. The mother’s four-year-old daughter (“child”) and her one-year-old son were also at the residence.

The mother’s friend was babysitting them for the evening. [ 7 ] Friesen and the mother engaged in consensual sexual intercourse in the mother’s bedroom. The mother audio- recorded what happened next on her cellphone and the transcript of the recording was admitted at the sentencing hearing. Friesen told the mother to bring the child into the bedroom so that they could force their mouths onto her vagina and so that he could force his penis into her vagina.

The mother brought the sleeping child up into the bedroom, removed her diaper, and laid her naked on the bed. [ 8 ] The child began to cry and tried to flee the bedroom. Friesen and the mother prevented her from escaping. As the child was in distress and screaming, Friesen repeatedly directed the mother to force the child’s head down so that he could force his penis into her mouth. [ 9 ] The child’s screams and cries awoke the mother’s friend. She entered the bedroom, observed the sexual violence, and told the child to “come here” (A.R., at p. 97). In response, Friesen said “bring her here” (p. 97).

Instead, the mother’s friend removed the child from the room. [ 10 ] With the child gone, Friesen told the mother to engage in sexual activities with him. The mother expressed regret about the violent assault on the child. In response, Friesen threatened to tell the mother’s friend that the mother had sexually abused her one-year-old son.

When the mother said she did not want this to happen, he told her to “relax” and masturbate herself in front of him (p. 99). [ 11 ] Friesen then threatened the mother, repeatedly telling her that unless she brought the child back, he would tell the mother’s friend that the mother had sexually abused her one-year-old son. Friesen told the mother that he intended to “fuck” and “rape” the child while “she’s crying” (pp. 100 and 102). In response, the mother repeatedly asked why Friesen needed to do “that stuff” (p. 100).

When the mother raised concerns about getting one of her children back from Child and Family Services (“CFS”), Friesen indicated that he would get one of her children back for her if she returned the child to the bedroom. [ 12 ] Friesen fled the residence when the mother’s friend confronted him about the sexual violence. B. Information About Friesen [ 13 ] Friesen pled guilty to sexual interference with the child ( Criminal Code , R.S.C. 1985, c. C-46, s. 151 ) and attempted extortion of the mother ( Criminal Code , s. 346(1) ).

At the time of sentencing, he was 29 years old and had no prior record. [ 14 ] Friesen’s childhood was characterized by neglect and by physical and sexual violence. When he left CFS care, he became homeless and sold sex on the street to survive. He lacked a supportive social circle and experienced depression and anxiety. He told the author of the pre-sentence report that the trauma of sexual abuse that he experienced has affected him throughout his life. He said he wanted professional counselling to deal with his problems.

At the sentencing hearing, he stated that he was sorry and had remorse (A.R., at p. 72). [ 15 ] The author of the pre-sentence report assessed Friesen as a high risk to re-offend. He scored in the 94th percentile of an actuarial measure of relative risk for sexual offence recidivism. The author concluded that Friesen’s level of insight into his behaviour was “essentially nonexistent” (p. 94). He claimed to be blacked out during the offences and distanced himself from his conduct by saying it was not something he would do.

He also stated that he enjoys being around children and wanted to be a role model for children. Despite reporting that he was under the influence of alcohol at the time of the offences, he also maintained that alcohol use was never a problem for him. As Friesen did not understand the risk factors that preceded the offences, there were no risk strategies in place to mitigate future risk. III. Proceedings Below A. Provincial Court of Manitoba (Judge Stewart), Reasons for Sentence, March 9, 2017 [ 16 ] In the Provincial Court of Manitoba, the Crown sought a sentence of seven years’ imprisonment.

Friesen suggested a sentence of a total of three years’ imprisonment. [ 17 ] Judge Stewart imposed a six-year sentence for sexual interference and a concurrent six-year sentence for attempted extortion. He identified the governing sentencing objectives as denunciation and the protection of children. Specifically, he found that the court’s duty to protect children from the threat of sexual violence was “paramount” (A.R., at p. 2). He identified the young age of the child and the involvement of the mother in the sexual violence as aggravating factors.

He acknowledged that Friesen’s youth, lack of a prior record, and difficult and traumatic upbringing were “important” mitigating factors (p. 2). He also accepted that Friesen did not stand in a position of trust in relation to the child. However, he found that Friesen was “in . . . denial” about his conduct and had “no insight” into his behaviour (pp. 2 and 5).

Judge Stewart concluded that this lack of insight was “frightening for ongoing risk into the future” (p. 3). [ 18 ] Judge Stewart determined that the four-to-five-year starting point for major sexual assault committed on a young person within a trust relationship by means of violence, threats of violence, or grooming, which the Manitoba Court of Appeal had

identified in R. v. Sidwell, 2015 MBCA 56, 319 Man.R. (2d) 144, was appropriate even though Friesen did not stand in a position of trust.For Judge Stewart, the absence of a position of trust did not “chang[e] the message” of Sidwell because of both the harm to the child andFriesen’s moral blameworthiness. First, Judge Stewart found that Friesen’s violent conduct produced an “instant effect” of harm to thechild as evidenced by her screams and cries (A.R., at p. 4). In addition to this immediate harm, Judge Stewart found that Friesen’sconduct caused “long lasting” psychological harm to the child (p. 3).

He identified the child’s extreme youth as “incredibly aggravating”because it increased her vulnerability to harm (p. 3). Second, Judge Stewart determined that Friesen’s moral blameworthiness was high.He found that the nature of Friesen’s conduct was “horrific” and that it was “unbelievable” that Friesen could commit sexual violenceagainst the child in such a manner. Judge Stewart also treated Friesen’s decision to accompany sexual violence with “a form of extortion”as “an aggravating factor” (p. 4). [19] Judge Stewart concluded that six years’ incarceration was required to protect children from risk.

He reasoned thatFriesen’s case was “one of the worst” that he had seen (p. 5). A three-year sentence would be insufficient to communicate thewrongfulness of Friesen’s conduct to both Friesen himself and the larger community. Judge Stewart determined that Friesen needed“significant help” and professional counselling that would only be accessible in a federal penitentiary to return to society without posinga risk to children (p. 5).

Immediately prior to imposing sentence, Judge Stewart reiterated that the protection of children from the risk ofsexual violence was the “major principle” that guided him in imposing sentence (p. 5). B. Manitoba Court of Appeal (Monnin, Beard and leMaistre JJ.A.), 2018 MBCA 69 [20] Writing for the Court of Appeal, leMaistre J.A. found that appellate intervention was justified because Judge Stewarthad erred in principle.

She reduced Friesen’s sentence to four and one-half years’ incarceration for the sexual interference conviction andto eighteen months’ incarceration to be served concurrently for the attempted extortion conviction. Only the Court of Appeal’sinterference with the sexual interference sentence was challenged on appeal to this Court. [21] Regarding the sexual interference sentence, leMaistre J.A. accepted that Judge Stewart had appropriately weighed theaggravating and mitigating factors.

However, she noted that the Sidwell four-to-five-year starting point presumed the existence of a trustrelationship but that Judge Stewart had found that there was no trust relationship between Friesen and the child.

Accordingly, sheconcluded that Judge Stewart “relied upon an aggravating factor that he had found did not exist” by employing the Sidwell starting pointand that this error had a meaningful impact on his analysis (para. 16 Thus, no deference was owed and the Court of Appealwas “free to consider the matter afresh” (para. 17). [22] LeMaistre J.A. then conducted a fresh analysis to determine a fit sentence. She accepted that the starting point forsentencing should be higher than three years because of Friesen’s use of violence and the child’s young age.

LeMaistre J.A. assessed theaggravating and mitigating factors without reference to Judge Stewart’s findings. In the course of this assessment, she characterizedFriesen’s use of violence as “more than what is inherent in a sexual offence” and stated that Friesen’s lack of insight “impacts on his riskwhen in the community” (para. 28). She also accepted that it was reasonably foreseeable that Friesen’s decision to involve the mother inthe sexual violence would likely cause added “serious psychological or emotional harm” to the child (para. 32).

She characterized thecircumstances of the offences as “serious” and Friesen’s responsibility as “high” (para. 31). The sexual interference alone warranted afour-year sentence, and leMaistre J.A. increased this figure by six months to account for the offence of attempted extortion, for whichshe sentenced the accused to 18 months’ incarceration to be served concurrently. In the concluding paragraph of her reasons, leMaistreJ.A. stated that Judge Stewart’s error in applying the wrong starting point for the sexual interference offence made the sentence heimposed demonstrably unfit (para. 42). IV.

Issues [23] The Crown raised two issues:

(1) Are sentencing ranges for sexual offences against children still consistent with Parliamentary and judicial recognition of theseverity of these crimes?

(2) Did the Manitoba Court of Appeal err by interfering with the six-year sentence the sentencing judge imposed for the sexualinterference conviction? [24] The first issue requires a broad overview of how the principles of sentencing apply to sexual offences againstchildren. The second requires an analysis of the standard of review, the starting point method, the principles governing consecutivesentences, and the principle of totality. V. Analysis A. Standard of Review [25] Appellate courts must generally defer to sentencing judges’ decisions.

The sentencing judge sees and hears all theevidence and the submissions in person (Lacasse, at para. 48; R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46).The sentencing judge has regular front-line experience and usually has experience with the particular circumstances and needs of thecommunity where the crime was committed (Lacasse, at para. 48; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para.91). Finally, to avoid delay and the misuse of judicial resources, an appellate court should only substitute its own decision for asentencing judge’s for good reason (Lacasse, at para. 48; R. v.

Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at para. 70). [26] As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence isdemonstrably unfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44). Errorsin principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigatingfactor.

The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enoughweight to another, the trial judge exercises his or her discretion unreasonably” (R. v. McKnight (1999), (ON CA), 135C.C.C. (3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49). Not every error in principle is material: an appellate court can only

intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44). If an error inprinciple had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if thesentence is demonstrably unfit. [27] If a sentence is demonstrably unfit or if a sentencing judge made an error in principle that had an impact on thesentence, an appellate court must perform its own sentencing analysis to determine a fit sentence (Lacasse, at para. 43).

It will apply theprinciples of sentencing afresh to the facts, without deference to the existing sentence, even if that sentence falls within the applicablerange. Thus, where an appellate court has found that an error in principle had an impact on the sentence, that is a sufficient basis for it tointervene and determine a fit sentence.

It is not a further precondition to appellate intervention that the existing sentence is demonstrablyunfit or falls outside the range of sentences imposed in the past. [28] However, in sentencing afresh, the appellate court will defer to the sentencing judge’s findings of fact or identificationof aggravating and mitigating factors, to the extent that they are not affected by an error in principle. This deference limits the number,length, and cost of appeals; promotes the autonomy and integrity of sentencing proceedings; and recognizes the sentencing judge’sexpertise and advantageous position (Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 15-18). [29] Often the sentence that the appellate court determines to be fit will be different from that imposed by the sentencingjudge, and the appellate court will vary the sentence. If the sentence chosen by the appellate court is the same as that imposed by thesentencing judge, the appellate court may also affirm the sentence despite the error. B. Principles Governing Appellate Review and Parity

(1) Proportionality and Parity [30] All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and thedegree of responsibility of the offender. The principle of proportionality has long been central to Canadian sentencing (see, e.g., R. v.Wilmott, (ON CA), [1966] 2 O.R. 654 (C.A.)) and is now codified as the “fundamental principle” of sentencing in s.718.1 of the Criminal Code. [31] Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similarcircumstances should receive similar sentences.

This principle also has a long history in Canadian law (see, e.g., Wilmott) and is nowcodified in s. 718.2(

b) of the Criminal Code. [32] Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistentapplication of proportionality will lead to parity. Conversely, an approach that assigns the same sentence to unlike cases can achieveneither parity nor proportionality (R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 36-37; R. v. Ipeelee, 2012 SCC 13, [2012] 1S.C.R. 433, at paras. 78-79). [33] In practice, parity gives meaning to proportionality.

A proportionate sentence for a given offender and offence cannotbe deduced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in othercases. Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedentsembody the collective experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality.

(2) Role of Appellate Courts [34] Appellate courts have a dual role in sentence appeals (Lacasse, at paras. 36-37). Correcting errors in sentencingensures both that the principles of sentencing are correctly applied and that sentences are not demonstrably unfit. Appellate courts alsohave a role in developing the law and providing guidance. Usually, in keeping with the common law emphasis on precedent, appellateguidance reflects and summarizes the existing law.

The appellate court will distill many precedents into a single statement, a range ofsentences or perhaps a starting point, that the sentencing judge can more readily use. [35] Sometimes, an appellate court must also set a new direction, bringing the law into harmony with a new societalunderstanding of the gravity of certain offences or the degree of responsibility of certain offenders (R. v. Stone, (SCC),[1999] 2 S.C.R. 290, at para. 239).

When a body of precedent no longer responds to society’s current understanding and awareness of thegravity of a particular offence and blameworthiness of particular offenders or to the legislative initiatives of Parliament, sentencingjudges may deviate from sentences imposed in the past to impose a fit sentence (Lacasse, at para. 57). That said, as a general rule,appellate courts should take the lead in such circumstances and give sentencing judges the tools to depart from past precedents and craftfit sentences.

(3) Ranges of Sentence and Starting Points [36] Canadian appellate courts often provide guidance in the form of ranges of sentences, which are “summaries of theminimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevantprinciples and objectives” (Lacasse, at para. 57). Some courts, particularly Alberta’s, use starting points as an alternative.

Similarprinciples apply to either form of guidance. [37] This Court has repeatedly held that sentencing ranges and starting points are guidelines, not hard and fast rules (R. v.McDonnell, (SCC), [1997] 1 S.C.R. 948, at para. 33; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 45; R. v.Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 44; Lacasse, at para. 60). Appellate courts cannot treat the departure from orfailure to refer to a range of sentence or starting point as an error in principle.

Nor can they intervene simply because the sentence isdifferent from the sentence that would have been reached had the range of sentence or starting point been applied (McDonnell, at para.42). Ranges of sentence and starting points cannot be binding in either theory or practice, and appellate courts cannot interpret or applythe standard of review to enforce them, contrary to R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199, at paras. 116-18 and 273. Asthis Court held in Lacasse, to do so would be to usurp the role of Parliament in creating categories of offences (paras. 60-61; see also

McDonnell, at paras. 33-34). [38] The deferential appellate standard of review is designed to ensure that sentencing judges can individualize sentencingboth in method and outcome. Sentencing judges have considerable scope to apply the principles of sentencing in any manner that suitsthe features of a particular case. Different methods may even be required to account properly for relevant systemic and backgroundfactors (Ipeelee, at para. 59).

Similarly, a particular combination of aggravating and mitigating factors may call for a sentence that liesfar from any starting point and outside any range (see Lacasse, at para. 58; Nasogaluak, at para. 44; R. v. Suter, 2018 SCC 34, [2018] 2S.C.R. 496, at para. 4). [39] A range or starting point should only be created for a category of offences that share enough common features that itis useful to judge them by the same rubric. When an appellate court outlines a range or starting point, it must also provide a cleardescription both of the category created and the logic behind it (Stone, at para. 245).

Without this description, it can be difficult to tellwhen the range or starting point is appropriate and how to use it.

(4) Concerns About Starting Points [40] Before this Court, the interveners the Legal Aid Society of Alberta (“LASA”) and the Criminal Trial Lawyers’Association (“CTLA”) raised broader concerns about the operation of the starting point method. Their concerns went beyond the issuesthat were settled in McDonnell. Indeed, LASA questioned whether the starting point methodology is an effective means of appellateguidance and argued that it suffers from deficiencies.

The interveners suggest that starting points can fetter discretion, limit the effect ofcase-specific factors, and result in sentences that cluster around the starting point. They submit that the effect of starting points is anunjustified higher rate of imprisonment and the reproduction of systemic bias against Indigenous offenders.

In addition, the intervenerssuggest starting point sentencing, with its reliance on the “typical” offender and offence, is unnecessarily complicated and hypothetical.When many mitigating factors are “built into” a starting point, the starting point can become in effect a minimum sentence. [41] Many practitioners, judges, and academics have consistently expressed these concerns (see, e.g., A. Manson,“McDonnell and the Methodology of Sentencing” (1997), 6 C.R. (5th) 277; J. Rudin, “Eyes Wide Shut: The Alberta Court of Appeal’sDecision in R. v. Arcand and Aboriginal Offenders” (2011), 48 Alta. L. Rev 987; L.

Silver, Sentencing to the Starting Point: The AlbertaDebate, May 23, 2019 (online)). We realize that the Alberta Court of Appeal has repeatedly defended the utility of the starting pointmethodology in the face of these concerns (see Arcand, at paras. 130-46; R. v. Parranto, 2019 ABCA 457, 98 Alta. L.R. (6th) 114, atparas. 28-38; see also P. Moreau, “In Defence of Starting Point Sentencing” (2016), 63 Crim. L.Q. 345). However, this Court has not yetaddressed these concerns. We make no comment on the merits of these concerns.

Nor should anything in these reasons be taken tosuggest that starting points are no longer a permissible form of appellate guidance. While we have determined that this case does notprovide an appropriate opportunity to assess the merits of these concerns, they raise an issue of importance that should be resolved in anappropriate case. C. Sentencing Principles for Sexual Offences Against Children [42] Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme ofsexual offences against children in the Criminal Code.

Our society is committed to protecting children and ensuring their rights andinterests are respected (Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, atpara. 67). As Otis J.A. stated in R. v. L. (J.-J.) (1998), (QC CA), 126 C.C.C. (3d) 235 (Que. C.A.), [translation] “theprotection of children constitute[s] one of the essential and perennial values” of Canadian society (p. 250). Protecting children frombecoming victims of sexual offences is thus vital in a free and democratic society (R. v.

Mills, 2019 SCC 22, [2019] 2 S.C.R. 320, atpara. 23). [43] This case presents an opportunity for this Court to consider the sentencing principles for sexual offences againstchildren. Sentencing is one of the most important and “most delicate stages of the criminal justice process” (Lacasse, at para. 1). It is atthis stage that the judge must weigh the wrongfulness of sexual violence and the harm that it causes and give effect to both in imposing asentence (C. L. M. Boyle, Sexual Assault (1984), at p. 171).

It is important for this Court to provide guidance so that sentencing judgesimpose sentences that accurately reflect the nature of sexual offences against children and their impact on the victim (see P. Marshall,“Sexual Assault, The Charter and Sentencing Reform” (1988), 63 C.R. (3d) 216, at p. 219). To do otherwise would improperly permitmyths that Parliament and this Court have striven to drive out of the law of evidence and substantive criminal law to simply re-emerge atthe sentencing stage (R. P. Nadin-Davis, “Making a Silk Purse? Sentencing: The ‘New’ Sexual Offences” (1983), 32 C.R. (3d) 28, at p.46).

This result could undermine the credibility of the criminal justice system in the eyes of victims, their families, caregivers, andcommunities, and the public at large (see Lacasse, at para. 3). [44] Given the facts of this case, the guidance we provide is focused on sentencing principles for the offence of sexualinterference and closely related offences such as invitation to sexual touching (Criminal Code, s. 152), sexual exploitation (CriminalCode, s. 153(1)), incest (Criminal Code, s. 155), and sexual assault (Criminal Code, s. 271).

However, the principles that we outline also have relevance to sentencing for other sexual offences against children, such as child luring (Criminal Code, s. 172.1).[2] Courts shouldthus draw upon the principles that we set out in this case when imposing sentences for such other sexual offences against children.Courts may also draw upon these principles when imposing sentences for child abduction and human trafficking offences where the victim is a child and the factual foundation for the conviction involves sexual violence or exploitation.[3] [45] We wish to make clear at the outset of our discussion of these sentencing principles that we recognize that criminaljustice responses alone cannot solve the problem of sexual violence against children.

Rather, guaranteeing children in Canada achildhood free of sexual violence requires coordinated action by all levels of government and by civil society across policy domains asdiverse as healthcare, education, and child welfare. Nonetheless, the criminal law in general and sentencing law specifically areimportant mechanisms that Parliament has chosen to employ to protect children from sexual violence, to hold perpetrators accountable,and to communicate the wrongfulness of sexual violence against children. It is our duty to give Parliament’s sentencing initiatives theirfull effect.

(1) Contemporary Understanding of Sexual Violence Against Children (

a) Prevalence and Role of Technology [46] Because protecting children is so important, we are very concerned by the prevalence of sexual violence againstchildren. This “pervasive tragedy that has damaged the lives of tens of thousands of Canadian children and youths” continues to harmthousands more children and youth each year (Canada, Committee on Sexual Offences Against Children and Youths, Sexual OffencesAgainst Children: Report of the Committee on Sexual Offences Against Children and Youths (1984), vol. 1, at p. 29 (“BadgleyCommittee”)).

In Canada, both the overall number of police-reported sexual violations against children and police-reported child luringincidents more than doubled between 2010 and 2017, and police-reported child pornography incidents more than tripled (Canada,Department of Justice Research and Statistics Division, Just Facts: Sexual Violations against Children and Child Pornography, March2019 (online), at pp. 1-2). Courts are seeing more of these cases (R. v.

M. (D.), 2012 ONCA 520, 111 O.R. (3d) 721, at para. 25).Whatever the reason for the increase in police-reported incidents, it is clear that such reports understate the occurrence of these offences(R. v. L. (W.K.), (SCC), [1991] 1 S.C.R. 1091, at pp. 1100-1101). [47] New technologies have enabled new forms of sexual violence against children and provided sexual offenders withnew ways to access children. Social media provides sexual offenders “unprecedented access” to potential child victims (R. v. K.R.J.,2016 SCC 31, [2016] 1 S.C.R. 906, at para. 102).

The Internet both directly connects sexual offenders with child victims and allows forindirect connections through the child’s caregiver. Online child luring can be both a prelude to sexual assault and a way to induce orthreaten children to perform sexual acts on camera (see R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81; R. v. Rafiq, 2015 ONCA768, 342 O.A.C. 193). The Internet has also “accelerated the proliferation of child pornography” (R. v. Morelli, 2010 SCC 8, [2010] 1S.C.R. 253, at para. 114, per Deschamps J.). [48] Technology can make sexual offences against children qualitatively different too.

For instance, online distribution offilms or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with theknowledge that others may be accessing the films or images, which may resurface in the child’s life at any time (R. v. Sharpe, 2001 SCC2, [2001] 1 S.C.R. 45, at para. 92; R. v. S. (J.), 2018 ONCA 675, 142 O.R. (3d) 81, at para. 120). [49] Both Parliament and the courts have begun to respond to the prevalence of, new forms of, and qualitative changes insexual violence against children.

Parliament has attempted to keep pace with these developments by amending sentencing provisions forsexual offences against children (K.R.J., at para. 103). Courts too have been on a “learning curve” to understand both the extent and theeffects of sexual violence against children and sentencing has evolved to respond to the prevalence of these crimes (R. v. F. (D.G.), 2010ONCA 27, 98 O.R. (3d) 241, at para. 21). (

b) Understanding the Wrongfulness and Harmfulness of Sexual Violence [50] To effectively respond to sexual violence against children, sentencing judges need to properly understand thewrongfulness of sexual offences against children and the profound harm that they cause. Getting the wrongfulness and harmfulness rightis important. As Pepall J.A. recognized in R. v.

Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752 (“Stuckless (2019)”), failure to recognizeor appreciate the interests that the legislative scheme of offences protects can result in unreasonable underestimations of the gravity ofthe offence (paras. 120, 122, 130 and 137; see also Marshall, at pp. 219-20). Similarly, it can result in stereotypical reasoning filteringinto the sentencing process and the consequent misidentification and misapplication of aggravating and mitigating factors (J.

Benedet,“Sentencing for Sexual Offences Against Children and Youth: Mandatory Minimums, Proportionality and Unintended Consequences”(2019), 44 Queen’s L.J. 284, at pp. 288 and 309; M. M. Wright, Judicial Decision Making in Child Sexual Abuse Cases (2007), at pp.xii-xiii and 39). Properly understanding the harmfulness will help bring sentencing law into line with society’s contemporaryunderstanding of the nature and gravity of sexual violence against children and will ensure that past biases and myths do not filter intothe sentencing process (Stone, at para. 239; R. v.

Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 200). (

i) Personal Autonomy, Bodily Integrity, Sexual Integrity, Dignity and Equality [51] 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. This Court recognized the importance of these interests in Sharpe inthe context of the production of child pornography.

As this Court reasoned, the production of child pornography traumatizes children andviolates their autonomy and dignity by treating them as sexual objects, causing harm that may stay with them for their entire lifetime(para. 92, per McLachlin C.J., and para. 185, per L’Heureux-Dubé, Gonthier and Bastarache JJ.).

Sexual violence against children is thuswrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity (seeSharpe, at paras. 172, 174 and 185, per L’Heureux-Dubé, Gonthier and Bastarache JJ.). [52] We would note that the personal autonomy interest carries a somewhat different meaning for children than it does foradults. Children under the age of 16 of course lack the capacity to consent to sexual contact with an adult.

As we will explain in detaillater in these reasons, a child’s participation in such contact is not a mitigating factor and should never be equated to consent. Instead,personal autonomy refers to a child’s right to develop to adulthood free from sexual interference and exploitation by adults (see Sharpe,at para. 185). [53] In 1987, Parliament created the modern legislative scheme of sexual offences against children by enacting Bill C-15,An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985, c. 19 (3rd Supp.).

In so doing, Parliament replaced theprevious offences based on the gender of the victim or the presence of penile penetration with “child-specific gender-neutral offences notdependent upon proof of penile penetration” (A. McGillivray, “Abused Children in the Courts: Adjusting the Scales after Bill C-15”(1990), 19 Man. L.J. 549, at p. 556). As Professor Anne McGillivray wrote, Parliament thus shifted the focus of sexual offences againstchildren from chastity or propriety to a “child-centred” approach that emphasizes the trauma to the child victim from all acts of sexualviolence (pp. 558-60).

The modern prohibition on sexual interference thereby gives effect to “Parliament’s recognition that adult/youthsexual relationships are inherently exploitative” by reason of the lack of maturity, judgment, and experience of children (R. v. George,2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 26; R. v. Hajar, 2016 ABCA 222, 39 Alta. L.R. (6th) 209, at para. 229).

[54] The enactment of Bill C-15 also illustrates how Parliament sought to protect children’s equality interest. Parliamentenacted Bill C-15 following the reports of the Committee on Sexual Offences Against Children and Youths and the Special Committeeon Pornography and Prostitution.

Both reports emphasized the need for any reform of the scheme of sexual offences against children toguarantee children the equal protection of their interests in autonomy, dignity and physical and sexual integrity (Badgley Committee, vol.1, at pp. 39 and 292; Canada, Special Committee on Pornography and Prostitution, Pornography and Prostitution in Canada: Report ofthe Special Committee on Pornography and Prostitution (1985), vol. 1, at p. 24 (“Fraser Committee”); Fraser Committee, vol. 2, at p.563).

Both reports also concluded that the failures of the existing scheme of sexual offences against children disproportionately affectedgirls and young women because they were disproportionately victimized (Badgley Committee, vol. 1, at p. 180; Fraser Committee, vol.2, at p. 573). In his speech introducing Bill C-15, then Minister of Justice Ray Hnatyshyn highlighted the conclusions of both reports.

Hereferred to statistics from the report of the Committee on Sexual Offences Against Children and Youths showing that children aredisproportionately vulnerable to sexual offences and that girls and young women are disproportionately victimized relative to boys.

TheMinister emphasized that the reform of the scheme of sexual offences against children would guarantee children “the equal degree ofprotection of the law” and provide them “more complete protection . . . from all manner of sexual abuse” (House of Commons Debates,vol. 1, 2nd Sess., 33rd Parl., November 4, 1986, at p. 1037). [55] These developments are connected to a larger shift, as society has come to understand that the focus of the sexualoffences scheme is not on sexual propriety but rather on wrongful interference with sexual integrity.

As Professor Elaine Craig notes,“This shift from focusing on sexual propriety to sexual integrity enables greater emphasis on violations of trust, humiliation,objectification, exploitation, shame, and loss of self-esteem rather than simply, or only, on deprivations of honour, chastity, or bodilyintegrity (as was more the case when the law’s concern had a greater focus on sexual propriety)” (Troubling Sex: Towards a LegalTheory of Sexual Integrity (2012), at p. 68). [56] This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focustheir attention on emotional and psychological harm, not simply physical harm.

Sexual violence against children can cause seriousemotional and psychological harm that, as this Court held in R. v. McCraw, (SCC), [1991] 3 S.C.R. 72, “may often bemore pervasive and permanent in its effect than any physical harm” (p. 81). [57] A number of this Court’s decisions provide insight into these forms of harm. In R. v. L. (D.O.),(SCC), [1993] 4 S.C.R. 419, L’Heureux-Dubé J. emphasized the emotional trauma that the nine-year old complainant experienced fromsexual violence (pp. 439-42).

Similarly, in McDonnell, McLachlin J. (as she then was) stressed the emotional harm of “the violation ofthe child victim’s integrity and sense of self-worth and control over her body” that the child victim experienced as a result of beingsexually assaulted while sleeping (para. 111). The likely result of the sexual assault would be “shame, embarrassment, unresolved anger,a reduced ability to trust others and fear that . . . people could and would abuse her and her body” (para. 113). [58] These forms of harm are particularly pronounced for children.

Sexual violence can interfere with children’s self-fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skillsand qualities to overcome adversity (Sharpe, at paras. 158, 184-85 and 188, per L’Heureux-Dubé, Gonthier and Bastarache JJ.; G.Renaud, The Sentencing Code of Canada: Principles and Objectives (2009), at § 12.64). For this reason, even a single instance of sexualviolence can “permanently alter the course of a child’s life” (Stuckless (2019), at para. 136, per Pepall J.A.).

As Otis J.A. explained in L.(J.-J.), at p. 250: [translation] The shattering of the personality of a child at a stage where [the child’s] budding organization as a person has only a veryfragile defensive structure, will result — in the long term — in suffering, distress and the loss of self-esteem. [59] In emphasizing the harmfulness of sexual offences against children, we do not intend to stereotype child victims ofsexual violence as forever broken. To the contrary, it takes great “strength and courage” to survive sexual violence as a child (R. v.J.R.G., [2013] B.C.J. No. 1401 (QL) (Prov. Ct.), at para. 26).

Frequently, child victims make “valiant and repeated efforts to havesomeone believe their allegations” (I. Grant and J. Benedet, “The ‘Statutory Rape’ Myth: A Case Law Study of Sexual Assaults againstAdolescent Girls” (2019), 31 C.J.W.L. 266, at p. 292 (“The ‘Statutory Rape’ Myth”)). Many victims go on to live healthy and meaningfullives with fulfilling and loving relationships. Offenders cannot rob children of their “strength, compassion, love for others andintelligence” and “resolve to take back their lives” (R. v.

Stuckless, 2016 ONCJ 338, at paras. 50 and 53 rev’d 2019 ONCA504, 146 O.R. (3d) 752). (ii) Relational Harm: Damage to Children’s Relationships With Their Families and Communities [60] Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers. Becausemuch sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trustrelationship (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 sexualviolence, the other 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). Children who are or have been in foster care may be particularly vulnerable since makingan allegation can result in the end of a placement or a return to foster care (see R. v. L.M., 2019 ONCA 945, 59 C.R. (7th) 410). Evenwhen a parent or caregiver is not the perpetrator, the sexual violence can still tear apart families or render them dysfunctional (R. v.

D.(D.) (2002), (ON CA), 58 O.R. (3d) 788 (C.A.), at para. 45). For instance, siblings and parents can reject victims ofsexual violence because they blame them for their own victimization (see Rafiq, at para. 38). Victims may also lose trust in the ability offamily members to protect them and may withdraw from their family as a result (Rafiq, at paras. 39-41). [61] The ripple effects can cause children to experience damage to their other social relationships. Children may lose trustin the communities and people they know.

They may be reluctant to join new communities, meet new people, make friends in school, orparticipate in school activities (C.-A. Bauman, “The Sentencing of Sexual Offences against Children” (1998), 17 C.R. (5th) 352, at p.355). This loss of trust is compounded when members of the community take the side of the offender or humiliate and ostracize the child(R. v. Rayo, 2018 QCCA 824, at para. 87 R. v. T. (K.), 2008 ONCA 91, 89 O.R. (3d) 99, at paras. 12 and 42). Technology andsocial media can also compound these problems by spreading images and details of the sexual violence throughout a community (see R.v.

N.G., 2015 MBCA 81, 323 Man.R. (2d) 73).

(iii) Harm to Families, Communities, and Society [62] The Criminal Code recognizes that the harm flowing from an offence is not limited to the direct victim against whomthe offence was committed. Instead, the Criminal Code provides that parents, caregivers, and family members of a sexually victimizedchild may be victims “in their own right” who are entitled to present a victim impact statement (B.

Perrin, Victim Law: The Law ofVictims of Crime in Canada (2017), at p. 55; see also Criminal Code, ss. 2 (“victim”) and 722). [63] The ripple effects of sexual violence against children can make the child’s parents, caregivers, and family memberssecondary victims who also suffer profound harm as a result of the offence. Sexual violence can destroy parents and caregivers’ trust infriends, family, and social institutions and leave them feeling powerless and guilty (R. v. C. (S.), 2019 ONCA 199, 145 O.R. (3d) 711, atpara. 6; Rayo, at para. 39; D. (D.), at para. 13).

The harm to parents’ relationship with their children can also be profound. For instance,children can react to the sexual violence by shutting their parents out of their lives (Rafiq, at para. 40). Parents and caregivers may alsobear the financial, personal, and emotional costs of helping their children recover and cope with emotional and behavioural challenges(see D. (D.), at paras. 11-13).

In the words of one mother of a child victim, the sexual violence “has taken many years from my son’s lifeand I know this will hurt me for the rest of my life” (D. (D.), at para. 11). [64] Beyond the harm to families and caregivers, there is broader harm to the communities in which children live and tosociety as a whole. Some of these costs can be quantified, such as the social problems that sexual violence against children causes, thecosts of state intervention, and the economic impact of medical costs, lost productivity, and treatment for pain and suffering (see Hajar,at para. 68; R. v.

Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 37; United Nations, Report of the independent expert for theUnited Nations study on violence against children, U.N. Doc. A/61/299, August 29, 2006, at p. 12). In particular, children who arevictims of sexual violence may be more likely to engage in sexual violence against children themselves when they reach adulthood (D.(D.), at paras. 37-38).

Sexual violence against children can thus fuel a cycle of sexual violence that results in the proliferation andnormalization of the violence in a given community (Standing Senate Committee on Human Rights, The Sexual Exploitation of Childrenin Canada: the Need for National Action, November 2011 (online), at pp. 10, 30 and 41). In short, the costs that cannot be quantified arealso profound. Children are the future of our country and our communities. They deserve to have a childhood free of sexual violence(Hajar, at para. 44).

When children become victims of sexual violence, “[s]ociety as a whole is diminished and degraded” (Hajar, atpara. 67). (iv) Wrongfulness of Exploiting Children’s Weaker Position in Society [65] The protection of children is one of the most fundamental values of Canadian society. Sexual violence againstchildren is especially wrongful because it turns this value on its head.

In reforming the legislative scheme governing sexual offencesagainst children, Parliament recognized that children, like adults, deserve to be treated with equal respect and dignity (BadgleyCommittee, vol. 1, at p. 292; Fraser Committee, vol. 1, at p. 24, and vol. 2, at p. 563). Yet instead of relating to children as equal personswhose rights and interests must be respected, offenders treat children as sexual objects whose vulnerability can be exploited by morepowerful adults.

There is an innate power imbalance between children and adults that enables adults to violently victimize them (Sharpe,at para. 170, per L’Heureux-Dubé, Gonthier and Bastarache JJ.

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