2023 NBPC 15, 2023 NBPC 15

CANADA PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT Trial Date: May 12 th , 2023 Trial Decision Date: June 21 st , 2023 Sentencing Hearing Date: July 12 th , 2023 Sentencing Decision Date: August 14 th , 2023 Docket No.: 05223211 Neutral Citation: 2023 NBPC 15 HIS MAJESTY THE KING - and - S.L. Decision of the Honourable Judge Scott A.

Brittain Provincial Court of New Brunswick SENTENCING DECISION 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 other witnesses whose names are specifically subject to this publication ban. No such information shall be published in any document or broadcast or transmitted in any way.

References to the actual names and/or initials of some of those involved as well as references to specific geographic locations within New Brunswick have been anonymized and/or generically expressed in parenthesis in keeping with the intention underlying this publication ban. Subsequent to the rendering of this oral decision, some grammatical/non-substantive edits have been made and are reflected in this published decision. APPEARANCES: Yves Duguay, on behalf of His Majesty The King Alexander Carleton, on behalf of S.L. INTRODUCTION 1 .

On June 12 th , 2023, I found S.L. guilty after trial of two indictable counts set out in an Information sworn to on April 25 th , 2022, which read as follows: COUNT 1 – [S.L.] on or about December 13th, 2021 at [XX], New Brunswick, did wilfully attempt to obstruct, pervert or defeat justice by attempting to dissuade a person A.A. by uttering threats to dissuade [A.A.] from giving evidence in a judicial proceeding, thereby committing an indictable offence contrary and in violation of Section 139(2) (

a) of the Criminal Code of Canada and amendments thereto. COUNT 2 – [S.L.] on or about December 13th, 2021 at [XX], New Brunswick, being bound to comply with an order under subsection 515(12) , 516(2) or 743.21(1) of the Criminal Code of Canada , did fail, without lawful excuse, to comply with that order, to wit: prohibited from communicating directly or indirectly with [A.A.], thereby committing an indictable offence, contrary to and in violation of paragraph 145(5) (

b) of the Criminal Code of Canada and amendments thereto. 2 . The sentencing hearing was held on July 12 th , 2023 and I reserved decision until today’s date to permit me to further reflect upon the sentencing recommendations of counsel and carefully review the case law they cited to ground their respective positions. 3 . It is not my intention to undertake a granular revisitation of the facts here; however, it is necessary to provide some factual context to anchor the sentence I will impose on S.L.

4. I take this opportunity to remind those present of the publication ban in place respecting this proceeding and, specifically, the banon publication respecting the identities of three individuals who testified at trial. 5. S.L. was found guilty after a jury trial held earlier this year and subsequently sentenced to a global consecutive period ofincarceration of seven years by Robichaud, J. in relation to sexual crimes he carried out against A.A.. These sexual crimes had an event date span of between December 1st, 2018 and March 12th, 2019, at which time A.A. was 14 years-old.

When S.L. elected a jury trial, healso elected to have a preliminary inquiry. 6. On two occasions on December 13th, 2021, while incarcerated at the Dalhousie Regional Correctional Facility (the “DRCF”), S.L.attempted to contact A.A. by telephone. The second of these two attempts, which were spaced several hours apart, was successful. Eachof these calls were made using an outbound telephone account assigned to S.L.’s fellow inmate, B.B. 7.

During the second of these two calls, I found that S.L. wilfully and intentionally made threats to dissuade A.A. from givingevidence in a judicial proceeding, namely the preliminary inquiry that was scheduled to (and ultimately did) proceed the following day, on December 14th, 2021, before my colleague, Durette, PCJ. 8. Specifically, S.L. explained during this call, which was recorded, that there would be consequences for A.A.’s family if A.A. wereto testify at the preliminary inquiry. These threats involved A.A.’s younger brother.

S.L. clearly intended to obscure that the two callswere from him by convincing B.B. to allow him to use his account on the false pretense that he was contacting his father when, in fact,he was trying to reach A.A. in advance of the following day’s preliminary inquiry where her testimony would obviously be central to thethreshold issue of committal. 9. I found that S.L. was or reasonably ought to have been aware that all outbound calls from the DRCF other than those protected bysolicitor-client privilege are recorded, which introduced a deceitful extra dimension to his serious criminal actions. 10.

At the time of this call, S.L. was also bound by a non-communication order issued on May 17th, 2021 by my colleague, Sivret, PCJ,which barred him from having any direct or indirect contact with A.A.. 11. S.L.’s actions constituted a threat that clearly had as its design the objective of convincing A.A. not to testify at the preliminary inquiry on December 14th, 2021. At that time, she was 17 years-old. One can only imagine what a terrifying experience this would be foranyone, let alone a minor in the broader circumstances that framed the ambit of the preliminary inquiry.

Both A.A. and the evidence ofA.A.’s mother regarding the former’s reaction to this call powerfully and compellingly supports this conclusion. 12. A.A., upon receipt of this call, was understandably terrified and hysterical. She rightly saw it as a threat. She explained sheimmediately wanted to change her cellular telephone number and leave her mother’s home.

This threat hit A.A. hard and it is a testamentto the strength and fortitude of this young woman that it did not ultimately cause her to refrain from testifying at the preliminary inquiry.The law is clear that a threat need not have its desired effect in order to constitute obstruction of justice. Though there is no victim impactstatement before me, the trial evidence provides me with more than just a glimpse regarding the effect this chilling and menacingexperience had on this young woman at a particularly vulnerable time. THE ISSUE 13.

The single issue this Court must decide is what is a fit and appropriate sentence for S.L.. POSITIONS OF THE PARTIES 14. The parties substantially

part company respecting their sentencing recommendations and each counsel has provided case law insupport of their respective positions. The Crown’s Position 15. The Crown recommends a global consecutive sentence of 30 months. In support of its recommendation, the Crown emphasizes thatS.L.’s actions were planned and deliberate with the obvious intention to interfere with the course of justice. Offences against theadministration or course of justice, submits the Crown, strike at the very core of our judicial system and, accordingly, must be dealt withboth strictly and severely.

When pressed repeatedly on how the totality principle informs its recommendation, the Crown eventuallysubmitted that, but for totality, a 42-month consecutive sentence would be in order. 16. In support of its recommendation, the Crown first referred to the recent decision of the Court of Appeal of New Brunswick inCorcoran v. R, 2022 NBCA 54 in which the accused plead guilty to the same offences under consideration in this proceeding.In that decision, the 18-month consecutive sentence imposed at first instance for obstruction of justice and breach of a non-communication order was upheld on appeal.

After detailing the factual matrix underlying this decision (see paragraphs 1 through 10),which consisted of an elaborate, aggressive and relentless six-month campaign on the part of the accused to defeat the course of justicethrough the coercion of his former intimate partner to get her to recant her evidence in order to exculpate him, the Court of Appeal ofNew Brunswick upheld this sentence as reasonable, albeit “on the high end of the spectrum” (see paragraph 30).

In this decision, theCourt of Appeal of New Brunswick reiterated the longstanding position that denunciation and deterrence, both specific and general, arethe predominant sentencing principles that apply to this form of criminality. Though the sentencing judge neglected to explicitly addressthe totality principle in the passing of sentence, the Court of Appeal of New Brunswick did not find this omission to rise to the level ofbeing a reversible error.

17. Next, the Crown referred to the very recent decision of Dorval, J. in R. v. Reynolds, 2023 CarswellOnt 888 (OCJ). In this case, theaccused was 32 years-old with no criminal record, a positive pre-sentence report and strong family support. At trial, he was found guiltyof obstruction of justice. The accused was aware he was being investigated for sexual assault involving a 16-year-old complainant withwhom he worked and that his arrest was imminent.

He implored the complainant on more than one occasion to “tell the police thatnothing happened, that it was all miscommunication and that they were friends, all of which was untrue”. He asked her to lie to the policeto “save his life”. The Crown sought a sentence of two and half years while counsel for the accused urged the Court to impose a 90-dayconditional sentence order. 18. Dorval, J. emphasized recent guidance from the Court of Appeal of Ontario in R. v.

Hopwood, 2020 ONCA 608 , where itwas observed at paragraphs 22 and 23 that “efforts by accused persons (whether directly or through others) to interfere with witnessesstrike at the heart of our justice system. There are already very serious concerns regarding the willingness of people who observe crimesto come forward and offer themselves as witnesses…interference with persons who are prepared to be witnesses only serves toexacerbate the problem. It must be clear to all accused persons that attempting to interfere in any way with a witness represents conductthat will not be tolerated”.

Given this guidance, the various factors before him and the applicable case law, Dorval, J. found two years tobe a fit and appropriate sentence. 19. In R. v. Ackman, 2020 MBCA 24 , the accused was in custody awaiting trial in relation to various crimes of a sexual naturefor which he was ultimately sentenced to 15 years. During a lengthy call he made from prison using the inmate telephone system, heencouraged a material witness to have his name removed from the witness list and to contact other material witnesses to get them to saythat law enforcement “was manipulating them to testify”.

The accused was found guilty of obstruction of justice and sentenced to 18months. On appeal, he challenged the finding of guilt and also challenged the sentence imposed as being “demonstrably unfit” because“no violence or threats of violence were used and the offence involved only a single phone call”. The Manitoba Court of Appeal affirmedthe finding of guilt and declined to disturb the sentence imposed at first instance. S.L.’s Position 20.

S.L.’s solicitor recommends a global consecutive sentence of 12 months, emphasizing that the totality principle looms large becausehis client is currently serving the recently imposed 7-year consecutive sentence. But for totality, S.L.’s solicitor indicated an 18-monthsentence would be in order. 21. In reference to the decision of the Court of Appeal of New Brunswick in Corcoran v. R., S.L.’s solicitor distinguishes that case fromhis client’s on the basis that the accused’s efforts in Corcoran v. R. amounted to a relentless campaign consisting of hundreds of callsover an extended period.

It bears mentioning, however, that in Corcoran v. R. there was the powerful mitigating factor of early guiltypleas: a circumstance that is not present in S.L.’s case. 22. Similarly, S.L.’s solicitor distinguishes R. v. Ackman on the basis that the accused in that case directly or indirectly sought tointerfere with several witnesses. R. v. Reynolds is distinguished on a similar basis: that the accused’s efforts consisted of several calls tothe complainant. He emphasizes that S.L. was found guilty of making two calls to A.A. several hours apart, only one of which wassuccessful. 23.

In support of his sentencing recommendation, S.L.’s solicitor refers to the British Columbia Court of Appeal’s decision in R. v.Olson, 2011 BCCA 8 in which obstruction of justice of a nature that he described as “more severe” resulted in the imposition ofa nine-month community-based sentence as part of a broader global community-based sentence of 21 months. The British ColumbiaCourt of Appeal upheld the sentence rendered at first instance. 24. A six-month sentence was imposed for obstruction of justice in R. v. K.T., 2011 ONSC 4050 .

In that case, the accused wascharged with and found guilty after trial of sexually assaulting his wife on two occasions. After he was charged, he reached out to anindividual close to his wife in order to get her to convince his wife to “drop the charges”, even offering $1,000 or more if that initiativewas successful. Accordingly, he was also convicted after trial of obstruction of justice. At the time of the latter offence, the accused wassubject to a non-communication order which barred any direct or indirect contact with his wife. The accused was 33 years-old and hadcome to Canada as a refugee.

He had no criminal record. 25. Finally, in R. v. W.S., 2012 BCPC 310 , 2012 BCPC 0310, the accused was sentenced to 12 months for obstruction ofjustice. After the accused’s sexual assaults had come to light but before the complainant had given any statements to police incriminatinghim, the accused pressed the complainant through several telephone calls, emails and text messages to “lie to the police”. The accusedvariously threatened the complainant, implored her to consider what would happen to him if he went to prison and offered to buy herthings, telling her “name it and its yours”.

After he was arrested and released on conditions following a bail hearing, which included theimposition of a non-communication order, the accused swiftly embarked on an additional week-long barrage of contact with thecomplainant with the hope of making the charges go way. Remand Credit 26. Queried about whether there is any remand credit to be applied to the sentence to be imposed in this case, both counsel agreed thatthere is zero remand credit.

This is so because S.L. was also remanded on the earlier charges for which he has already been sentenced,both periods of remand overlapped and a remand credit was applied to the sentence S.L. is currently serving. S.L. does not get the benefitof that remand credit a second time. THE APPLICABLE LAW The General Principles and Purposes of Sentencing

27. Sentencing has been described as “one of the hardest tasks confronting a trial judge” (see R. v. Gardiner, (SCC) atpara. 108). The Supreme Court of Canada has recognized that the fitness of a sentence imposed can establish or diminish the “credibilityof the criminal justice system in the eyes of the public” (see R. v. Lacasse, 2015 SCC 64, at para. 3). 28. The task is governed by the provisions of the Criminal Code but 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, at para.29). The purpose and principles of sentence, as set out in the Criminal Code, allow for “sentence individualization" and guide thesentence this Court must impose. 29. 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. 30. 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 para. 38). Put another way, sentencing is moreart than science. 31.

Before considering the circumstances of the offence and the offender, I will briefly address the objectives and principles ofsentencing and highlight those that are predominant in this case. 32. 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 para. 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 para. 6).

This Court is required to attribute to the objectives of denunciationand deterrence their proper predominant influence in the crafting of a just sentence. 33. 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, his record and attitude, his motivation and his reformation and rehabilitation. 34.

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. 35. 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 essentially requires that imprisonment be the sentence of last resort. There arecircumstances of both offender and offence, however, that require S.L. to be imprisoned in this case. 36. The maintenance of a just, peaceful and safe society, as is mandated by

section 718 of the Criminal Code, can often best be achievedby the rehabilitation of offenders. As the Supreme Court of Canada has held, “Rehabilitation is one of the fundamental moral values thatdistinguish Canadian society from the societies of many other nations in the world” (see R. v. Lacasse, 2015 SCC 64 at para. 4). 37. 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. 38. Other principles are important in crafting an appropriate sentence here. First, subsection 718.2(

b) of the Criminal Code states that “asentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. This is acodification of the parity principle. 39. 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 Aboriginal

offenders. 40. 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. 41. These are the general principles that inform the sentencing of S.L. by this Court. The Predominant Sentencing Principles in Cases of Obstruction of Justice 42. As is clear from the case law, the predominant sentencing principles that apply to obstruction of justice are denunciation anddeterrence, both specific and general. 43. In Corcoran v. R., the Court of Appeal of New Brunswick observed as follows at paragraph 20: 20.

Obstruction of justice charges strike at the very core of our judicial system. In this case, Mr. Corcoran communicated with akey Crown witness for the sole purpose of subverting the course of justice. Canadian society’s tolerance for such conduct is, quiterightly, non-existent; the system’s failure to properly denounce and deter such conduct would, in my view, trivialize an egregiousoffence. These concerns are reflected in case law from this Court. 44. The Court of Appeal of New Brunswick went on to consider several New Brunswick sentencing authorities in Corcoran v.

R, which Ihave also reviewed and considered, before it affirmed that the 18-month sentence imposed at first instance was both fit and appropriate. Victim Impact Statement 45. In this case, A.A. did not return a Victim Impact Statement to Victim Services, the associated efforts of which have been detailed in correspondence to this Court from Jessica Plourde, Victim Services Coordinator, dated July 10th, 2023. That being said, I have already

touched upon the serious impact this event had on A.A.’s sense of well-being and personal security. It was inescapably evident to me from her compelling trial testimony that this event shook her to the core at an incredibly stressful juncture in her extended ordeal involving S.L.. The Background and Circumstances of S.L. 46 . I have the benefit of a pre-sentence report that was prepared for S.L.’s recent sentencing on the earlier charges. It is dated May 26 th , 2023. For clarity, it was confirmed with S.L. at the sentencing hearing that he is not Indigenous.

Accordingly, I need not consider the specific principles of sentencing that apply in the context of Indigenous offenders. 47 . S.L. is 44 years-old and currently single with a GED level education. Prior to his incarceration, S.L. was self-employed in a range of fields. He reportedly enjoys considerable family support from his father, his three brothers and his adult son. His mother passed away several years ago. His upbringing was positive, stable and free of any forms of abuse. 48 . S.L. suffers from chronic back problems but it does not preclude him from carrying out his daily functions.

It is reported that “he benefits from a well-balanced emotional and mental health”. No past issues with drugs, alcohol or gambling are identified in the pre- sentence report. 49 . The pre-sentence report suggests that S.L. “seems to bear little responsibility on any matters that have affected him over the years”. To the contrary, it states, “he projects responsibility onto others with regards to relationships, health or judicial matters” and demonstrates “a lack of empathy towards the victim”. He maintains his innocence and, accordingly, is of the view that no rehabilitation is required. 50 .

S.L.’s prior defendant history report was admitted by consent as an exhibit at his sentencing hearing. It is varied and extensive, with five past convictions for breaching probation orders, all of which are dated, and four past convictions for other breaches. Though convicted along the way of several serious offences, S.L. does not have any past convictions that reside in the family of crimes against the administration or course of justice, such as perjury or obstruction. AGGRAVATING AND MITIGATING FACTORS Aggravating Factors 51 .

Having regard to the principles of law earlier canvassed, I find the following circumstances to be aggravating in this case: a. S.L. has a varied and extensive criminal record punctuated by several convictions for past breaches that align with the offence specified in Count #2; b. S.L. concocted a clear and deliberate plan to interfere with the course of justice while taking a series of deceitful steps to obscure his identity in view of his knowledge about the process of tracking and recording inbound and outbound calls to and from inmates at the DRCF; c.

A.A. was under the age of 18 at the time of these offences. In my view, paragraph 718.2 (a)(ii.1) of the Criminal Code is engaged as a statutory aggravating factor; d. Though no victim impact statement was filed in this case, it is very clear to me from A.A.’s trial testimony that this event had a significant impact on her considering her age and other personal circumstances. In my view, paragraph 718.2 (a)(iii.1) of the Criminal Code is engaged as a statutory aggravating factor, and e.

When S.L. attempted to dissuade A.A. from participating in the preliminary inquiry through threats uttered on its eve, he was bound by a strict order of non-communication involving A.A.. f. The Crown submits that S.L. was in a “position of trust” towards A.A. and, accordingly, takes the position that the statutory aggravating factor specified in paragraph 718.2 (a)(iii) is engaged in this case. This submission is, according to the Crown, predicated on the jury having found in S.L.’s other proceeding that he was in a position of trust vis-a-vis A.A..

I wish to make it very clear that I do not accept this submission based on the record before me and, accordingly, I have not considered same to be a statutory aggravating factor in this case. Mitigating Factors 52 . There are no mitigating factors.

THE OFFENCES AND THE RANGE OF SENTENCE The Sentencing Ranges for the Offences Under the Criminal Code 53. The indictable offence of obstruction of justice under paragraph 139(2)(

a) of the Criminal Code carries a maximum term ofimprisonment of 10 years. There is no minimum. 54. As for the indictable offence of breaching a non-communication order made under

section 743.21 of the Criminal Code, contrary toparagraph 145(5)(

b) of the Criminal Code, the maximum term of imprisonment is two years. There is also no minimum. 55. I take note here of the repeated observation 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). APPLICATION OF THE LAW 56.

Obstruction of justice strikes at the very core of the administration of justice and, as is evidenced by the authorities earliercanvassed, this particularly insidious form of criminality arises in a wide range of contexts and can produce an equally broad range ofobjectionable outcomes. The administration of justice is predicated on the truthful testimony of those persons who give evidence underoath, regardless of the context or forum in which that evidence is given.

When those persons are, through threats or other tactics ofintimidation, dissuaded from testifying in circumstances that already make the prospect of doing so profoundly difficult, it strikes at thevery core of our criminal justice system. Thankfully, S.L.’s initiative was unsuccessful. It very well could have been and that, in and ofitself, is profoundly troubling. 57. S.L.’s calculated actions amounted to an attack on our system of justice while also causing considerable torment and anguish forA.A.. The moral blameworthiness of S.L. is high.

Accordingly, the message needs to be sent to S.L. and to the broader community thatincursions of this nature on the course of justice are intolerable and result in significant punishment. To treat instances of obstruction ofjustice lightly would, in effect, serve to license such criminality to the great detriment of the public and to our system of justice moregenerally. 58.

I have considered the purposes and principles of sentencing, the many aggravating factors at play in this case, the relevant body ofcommon law authority and the sentencing ranges for these indictable offences, as established by Parliament in the Criminal Code, infashioning what I believe to be a fit and appropriate sentence for S.L.. 59. In considering what constitutes a fit and appropriate sentence, I have completed what can fairly be described as an extensive surveyof the applicable sentencing case law. This has been done in order to be faithful to the parity and proportionality principles.

Moreover, Ihave considered the clear direction of the Court of Appeal of New Brunswick as it pertains to the totality principle. In particular, I amvery mindful of the fact that S.L. is serving a recently imposed 7-year sentence and I must avoid imposing a sentence that is “undulylong”, “disproportionate” or “crushing”, as this would run contrary to subsection 718.2(

d) of the Criminal Code. 60. As noted earlier, I vigorously pressed both the Crown and counsel for S.L. on the application of the totality principle at thesentencing hearing. I find the recommendation of the Crown that a 42-month sentence reduced to 30 months owing to totalityconsiderations is out of step with the common law authorities that have been canvassed. Reaching this conclusion does not diminish theegregious circumstances of this case, as addressed in the Introduction to this decision and reflected in the many aggravating factorsearlier identified.

The notion of an individual who stands charged with sexual crimes against a minor threatening her from prison on theeve of the preliminary inquiry where her testimony will be central to the threshold issue of committal is repugnant to the extreme. Thegreat lengths S.L. went to in order to obscure his identity and the additional fact that this all occurred in the face of a strict non-communication order makes his carefully choreographed actions all the more despicable. 61.

In contrast to the higher sentencing recommendation of the Crown, which, if imposed, would see me going one full year beyondwhat the Court of Appeal of New Brunswick found in Corcoran v. R. to be a sentence “on the high end of the spectrum”, I find some ofthe authorities cited by S.L.’s counsel to be reflective of the lower end of the sentencing range. His recommended sentence of 18 months,reduced to 12 months for totality, is too light in my view given the circumstances and prevailing authorities. 62.

Having considered the disturbing factors at play in this case, the submissions and recommendations of counsel and the body ofapplicable common law authority, I conclude that the following sentence for S.L. is in harmony with the parity, proportionality andtotality principles: a. On Count #1, being the obstruction of justice offence, I impose a sentence of 24 months to run consecutive to any other sentence.Given the direction of the Court of Appeal of New Brunswick in Brown v.

R., I take this opportunity to note that a 30-month consecutivesentence would have been imposed but for the application of the totality principle. b. On Count #2, being the breach of the non-communication order, I impose a 6-month sentence to run concurrently to any othersentence. 63. For the reasons earlier stated, there is no remand credit in this case. Also, no ancillary orders are either obligatory or requested by theCrown. In these circumstances, I make no ancillary orders other than a non-communication order prohibiting contact with A.A. pursuantto subsection 743.21(1) of the Criminal Code.

64 . S.L. has been incarcerated for an extended period of time and is in the early stages of serving what, with this sentence alongside that earlier imposed, amounts to nine years consecutive. He will be behind bars for a long time. In view of this, I waive the imposition of any victim fine surcharges. 65 . I readily acknowledge that this sentence is on the high end of the spectrum but, put bluntly, it is precisely what is called for in the very egregious circumstances of this highly troubling case. 66 . Absent anything requiring clarification from counsel, that concludes the sentencing decision of this Court. Going forward, S.L., I sincerely wish you well. Brittain, PCJ