R v WS, 2024 MBPC 11

CITATION: R v WS , 2024 MBPC 11 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN His Majesty the King ) ) J. Negrea for the Crown - and - ) W.S. Accused ) ) ) M. Bhangu for the Accused ) ) ) ) Judgment delivered: January 25, 2024 Restriction on Publication Pursuant to s. 486.4(1) of the Criminal Code , any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence. C.A. DEVINE, P.J.

INTRODUCTION [ 1 ] I convicted WS after trial for sexually interfering with his stepdaughter K when she was between the ages of 9 and 13 ( see R v WS , 2023 MBPC 36 ). The accused had been her mother’s partner since K was three years old, so she and her younger sister both called him dad and he was for all intents and purposes, their father.

The Crown is seeking a sentence of 11 years in the penitentiary in light of the duration of the incidents, the breach of trust, the significant harm to K, and citing the need for denunciation and deterrence. [ 2 ] The defence is seeking a conditional sentence order (CSO) of two years less a day to be followed by three years of probation including sexual offender treatment, asking for the exercise of restraint considering the accused’s personal and family circumstances. [ 3 ] A non-custodial sentence or even a provincial sentence would be wholly inadequate in the circumstances of this offence.

An 11-year sentence is higher than necessary to be proportional and meet the need for denunciation. THE OFFENCES AND SURROUNDING CIRCUMSTANCES [ 4 ] The duration of the sexual abuse is the overarching feature which underscores the seriousness of this case. There were three specific types of sexual interference involved and general atmosphere of danger. The accused grabbed K’s breasts and vulva over her clothing many, many times at his mother’s apartment, when K and her sister were there. These grabs were fleeting physically, but have had long-term negative consequences for K.

One time he put his finger in her belly button, wiggled it around and asked if she felt anything “down there”, referring to her vaginal area. He frequently asked her to lay beside him on the couch. One time he had her in a spooning position and rubbed his hand forcefully against her vagina and pushed his finger into her vagina over her clothing to the point that it hurt. [ 5 ] In addition to the acts constituting sexual interference, the accused created a general atmosphere of fear. His behaviour towards K was sexualized and predatory, and she was afraid of him and what he might do next.

He was violent towards her mother, and she was afraid he might hurt her too. One time he was watching pornography in K’s presence, while being naked below the waist. She could see his penis. One time when the girls were sleeping over at his mother’s home, he asked her if she was touching herself. She did not understand masturbation at the time, but the question made her feel uncomfortable. As she got older, he often made comments about her “boobs” getting bigger, how she looked “hot” in a shirt, and asking her what line of underwear she wore.

He sometimes came into the bathroom when she was showering, on the pretext that he had to urinate. One time he pulled the shower curtain open to look at her.

She did not like the way he watched her when she left the bathroom wrapped in a towel after a shower, so she started taking her freshclothes into the bathroom to change into. She tried to avoid him at his mother’s home when they were changing in and out of theirbathing suits. He tried to enter the bathroom one time when she was changing. When she got older and he was touching her frequently,he was also nicer to her and started giving her money, which she saw as a form of bribery so that she would not tell her mother. He tooka lot of photos of her in her bathing suit or shorts.

He would sit at the shallow end of the pool and take photos of her and her sister. [6] On more than one occasion, he tried to show her nude photographs of her mother on his phone. She would turn her head andlet him know she did not want to see them, but she had to be nice about it because she was so scared of him. [7] After she had her own telephone in 2017, the accused sent her sexualized text messages addressed to her mother onapproximately 10 occasions. After the first or second time, she told her mother who was very angry.

The accused claimed this wasaccidental, but the texts continued and he told her not to tell her mother. She was able to recall the words in one of the texts – itcontained sexually explicit language inviting cunnilingus, fellatio, sexual intercourse and inviting the mother to have intercourse withanother man so the accused could watch. [8] The accused frequently told K after the touching not to say anything about it to her mother, or it would “ruin everything”. Kwas scared of him because he was violent and she was worried that her mother would “freak out” if she told her.

And, despite theseincidents, which bothered her, she still did not want to be responsible for breaking up the family. She did not disclose these occurrencesuntil she believed the relationship between the accused and her mother was finally over, because she was scared of the accused andwanted to maintain calm in an otherwise tumultuous household. SENTENCING CHILD SEXUAL OFFENCES: THE RELEVANT SENTENCING PRINCIPLES [9] The fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of ajust, peaceful and safe society.

This is accomplished by imposing just sanctions that have one or more objectives. The relevantsentencing objectives in this case are denunciation and deterrence, promoting a sense of responsibility in the accused and acknowledgingthe harm done to K, her family, and the larger community.

Section 718.01 of the Criminal Code requires that when the court issentencing an offence that involves the abuse of a child, primary consideration must be given to the objectives of denunciation anddeterrence. [10] In the Supreme Court of Canada’s “watershed” decision of R v Friesen, 2020 SCC 9, the Court characterized

section 718.01 aspart of a significant shift to “re-set the approach of the criminal justice system to offences against children” (at para 102, citing R v DRW,2012 BCCA 454 at para 32). [11] The Supreme Court confirmed the Court’s approach towards sexual offences involving children recently in R v BertrandMarchand, 2023 SCC 26 (at paras 31-32): Friesen sends the clear message that sentences for these crimes must account for the far-reaching and ongoing damage sexual violencecauses to children, families and society at large, which may take many years to manifest.

Consequently, sentences for offences involvingsexual violence against children must generally increase to reflect society's modern understanding of such offences and Parliament'schoice to increase the sentences associated with these crimes (paras. 3-5). Friesen sets out a useful method of analysis which places children, and the harm they suffer, at the centre of the discussion. [12] Two broad themes have emerged in Canadian law.

First, the approach to child sexual offences is child-centred, and secondly, itrecognizes through deterrent and denunciatory sentences the profound harm caused by sexual offending against children. [13] Concomitant with the deepening understanding of the serious and long-term effects of child sexual abuse as comprehensivelydiscussed in Friesen and Marchand, are increasing sentences for these crimes (see Friesen at para 114). [14] Writing for the Court in Friesen, Chief Justice Wagner and Justice Rowe discussed the role that denunciation plays,particularly when dealing with offences against children (at para 105): Parliament's choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to thewrongfulness of these offences and the serious harm they cause.

The sentencing objective of denunciation embodies the communicativeand educative role of law (R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 102). It reflects the fact that Canadian criminal law is a"system of values". A sentence that expresses denunciation thus condemns the offender “for encroaching on our society’s basic code ofvalues”; it “instills the basic set of communal values shared by all Canadians” (M. (C.A.), [ (SCC), [1996] 1 SCR 500]at para. 81).

The protection of children is one of the most basic values of Canadian society (L. (J.-J.), [ (QC CA),[1998] JQ no 755] at p. 250; Rayo, [2018 QCCA 824] at para. 104). [15] The centrality of denunciation and deterrence in sentencing sexual crimes against children flows from the need to protect thepersonal autonomy, bodily integrity, sexual integrity, dignity, and equality of children. [16] Overarching those objectives is the fundamental principle of sentencing: proportionality.

It works to ensure that the sentencedoes not exceed what is just and appropriate, but rather is proportional to the gravity of the offence and the degree of responsibility theoffender had when they committed the offence. In R v Nasogaluak, 2010 SCC 6, Justice LeBel explained: [Proportionality] requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender andthe gravity of the offence. In this sense, the principle serves a limiting or restraining function. . . Whatever the rationale for

proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by theprinciple that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it.

The two perspectives onproportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary. [At para 42; emphasis in original.] PROPORTIONALITY: THE GRAVITY OF THE OFFENCE [17] The law has evolved as Parliament and the courts have, over the years, learned of the serious immediate and long-term harmcaused by sexual abuse of children. The law now reflects society’s contemporary understanding of sexual violence against children,which is continually “deepening and evolving” (Friesen at para 74).

The law recognizes the “life altering consequences” of this crime onits victims and the people around them (Friesen at para 74, citing R v Woodward, 2011 ONCA 610 at para 76).

Sexual offences againstchildren are now referred to as “sexual violence” because they are “violent crimes that wrongfully exploit children’s vulnerability andcause profound harm to children, families, and communities” (Friesen at para 5). [18] Sentences have become lengthier (see Friesen at paras 106-114). [19] The Supreme Court in Friesen has directed sentencing courts to take into account the wrongfulness and harmfulness of childsexual offending when conducting their proportionality analysis, noting that the wrongfulness and harmfulness of child sexual abuseimpact both the gravity of the offence and the degree of responsibility of the offender (see para 75). [20] The Court reiterated that it is not sufficient for sentencing courts to state that sexual offences against children are serious; thesentences imposed must reflect the normative character of the offender’s actions and the consequential harm to victims and communities(see para 76). [21] The offending and general behaviour around K had “life altering consequences” for her.

Her personal autonomy, that is, her“right to develop to adulthood free from sexual interference and exploitation by adults” was taken away from her by the man acting asher father (Friesen at para 52). [22] K provided a victim impact statement as part of the sentencing. She is now 18 years old. In it, she talked about how her lifeemotionally had changed for years and her whole teenage life has been full of daily fear and anxiety. She described her life as living in a“fear bubble”. She is uncomfortable around men.

She feels like the world is scarier than it probably is because she cannot get past thefeelings of shame, guilt, uncomfortableness and fear. She has a horrible self-image because of the shame. [23] She has developed a chronic physical condition called vaginismus, a fear reaction to any vaginal penetration. Her vaginalmuscles contract involuntarily. As a result, she has never been able to use a tampon and she has been menstruating since the age of 11.She cannot experience vaginal sexual intercourse with her partner, because it is too painful.

She cannot even have a medical vaginalexamination. [24] This physical manifestation of the abuse alone clearly demonstrates the interference with K’s ability to develop as a sexualbeing. [25] She is terrified that the accused will find her and hurt her or her mother, because she is one who disclosed the abuse, and theaccused has been convicted. She is worried for her sister when her sister goes out alone, that he will see her. She is afraid of leaving thehouse and seeing him, so she avoids going out alone. She is afraid of sleeping alone for fear he will find her and hurt her.

She fearsrevenge from him. [26] The victim impact statement demonstrates the profound impact of this offence on K. She has not been able to enjoy normalteenage years and normal sexual development, and as she enters young adulthood, she is filled with fear, shame, and a concerningmedical condition. [27] K’s mother also filed a victim impact statement which discussed not only the impacts on her daughter, but also on her and herother daughter. As a result of her partner of 12 years sexually abusing her daughter, she has a difficult time trusting anyone. She is veryworried about any males being around her daughters.

She is afraid for her daughters’ safety from the accused, who she described asviolent and unpredictable. She too is worried he will find them. [28] The emotional, physical, sexual, social, mental and psychic toll has been significant. [29] In Friesen, the Supreme Court stressed that “[g]etting the wrongfulness and harmfulness [of child sexual abuse] right isimportant” (at para 50). Because of the bravery of K in testifying and her mother in sharing the wrongfulness and harm caused to them, Iam in a position to assess the harm based on their evidence.

What they stated in their victim impact statements mirrors what is knownand reflected in the case law. Their statements also contribute to the body of knowledge that is growing in Canadian jurisprudence. Aswas stated in Friesen (at para 50): Properly understanding the harmfulness will help bring sentencing law into line with society’s contemporary understanding of the natureand gravity of sexual violence against children and will ensure that past biases and myths do not filter into the sentencing process (Stone,[ (SCC), [1999] 2 SCR 290] at para. 239; R. v. Barton, 2019 SCC 33, at para. 200).

PROPORTIONALITY: THE CIRCUMSTANCES AND MORAL CULPABILITY OF THE OFFENDER [ 30 ] The moral culpability of the offender is very high.

As the Supreme Court held in Friesen , “the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable” (at para 90) and “the offender is or ought to be aware that this action can profoundly harm the child” (at para 88). [ 31 ] Like other offenders who have come before the courts, this offender recognized K’s particular vulnerability, his trusted father relationship, and intentionally exploited these circumstances to satisfy his sexual impulses. His conduct was intentional and purposeful.

It was not impulsive or opportunistic, except to the extent that he took every opportunity to sexually interfere with K when he was alone in a room with her. The duration and frequency of the intrusive acts and the general climate of sexual oppression he created, characterize his conduct as predatory. [ 32 ] As the majority noted in Friesen , “Children are most vulnerable and at risk at home and among those they trust” (at para 66).

The repeated and prolonged offending behaviour increased his accused’s moral culpability (see para 131), as did the breach of trust (see para 129). [ 33 ] The behaviour was ongoing and opportunistic.

He touched or interfered with K in the kitchen with others in the apartment, or under blankets when others were in the living room; he created an unsafe and sexualized environment for K. [ 34 ] The offender was between the ages of 45 and 51 years old when he committed the sexual interference. [ 35 ] He has a criminal record with convictions for two domestic violence assaults in 2002 and 2012, and an assault cause bodily harm from 1987 for which he was conditionally discharged.

In addition, he has four convictions for thefts, failing to attend court on two occasions, failing to comply with conditions of an undertaking, failing to comply with a probation order, and fraud. His theft convictions apparently relate to a time when his drug addiction to cocaine cost up to $150 per day and he was stealing to support his habit. [ 36 ] He was born in Winnipeg to his 17-year-old mother, and a father who years later was convicted of breaking into the Minto Armoury to steal guns and other weapons and was sentenced to four years in the penitentiary.

The father was prohibited from staying in Manitoba after his release and relocated to British Columbia. When the accused was 13, his mother sent him to live with his father because she was unable to manage his behaviour. His father died of cancer when the accused was in his mid-twenties. [ 37 ] The accused was not strictly supervised as a young person and was introduced to drugs and criminal activity by his uncles who were charged with his care when his mother was at work. He was introduced to cocaine by them when he was 18.

His sister told the presentence report (PSR) writer that the uncles were physically abusive to the accused. Both the accused’s mother and sister confirmed that there was significant criminal activity, gang membership and dysfunction among the maternal family. The maternal grandfather was a street gang member and had a particularly bad influence on the accused. The accused characterized his childhood to the PSR writer as “normal”.

There were indeed some prosocial activities, such as team baseball, air cadets and competitive wrestling – which he was very good at, making it to the provincials. [ 38 ] The accused advised the Court that he has three biological daughters. The two daughters mentioned in the PSR are 35 and 29 years old and live in Manitoba. The accused did not meet his other daughter until she was 14 years old. He has the most contact with his younger daughter. He also has a 16-year-old-son from a different relationship, who now lives in Alberta. [ 39 ] His first daughter was born when the accused was 17 years old.

During his relationship with the girls’ mother, both the accused and his partner were heavily abusing drugs and stealing to support their drug addictions. His partner lost her job, entered the sex trade and they eventually lost everything and became homeless, living in shelters for two years in British Colombia. The girls were apprehended by child protective services and the younger daughter lived with the accused’s mother.

The accused entered rehabilitation in his late twenties, started the methadone program, stopped abusing drugs, and took a parenting program. [ 40 ] He returned to Winnipeg and became involved with K’s mother. They were together for 12 years, the relationship ending in 2019. The relationship was marked by alcoholism (on the part of K’s mother, according to the accused) and domestic violence.

There was significant police involvement and there is currently a protection order in place to prohibit the accused from having contact with K’s mother. [ 41 ] He assists his son in Alberta financially and has almost daily contact with the boy, who is in high school. The boy’s mother passed away this summer, which has had a major impact on the accused wanting to take more responsibility as a father to his son. [ 42 ] The accused lives with his mother in Winnipeg and has regular contact with his 29-year-old daughter. They both attended the sentencing hearing and both provided letters of support, as did his son.

His mother is 75 years old. She is professionally educated and worked in the Project Neecheewam Eagle Warriors group home for 30 years. She urged a community-based disposition to allow her son to remain with her, as he is a big help in her home financially and physically. His daughter spoke of the parental, financial and emotional support she has always received from him. Finally, his son wrote about his grief over loss of his mother this summer and how his father is financially supporting him to stay in Alberta with the family of one of his friends, so he can finish high school there.

He has always flown to Manitoba twice a year to spend time with his father, at Christmas time and in the summer. [ 43 ] There is no question that a custodial sentence would have a detrimental impact on the accused’s family. [ 44 ] It does not impact the blameworthiness in committing these offences against K, however. If anything, his moral culpability in committing these offences against K is even higher, in light of the positive family relationships with his biological family, his previous parenting programs and his drug treatment and “straightening up”. [ 45 ] The other impact is his own health.

He was previously diagnosed with kidney cancer and has had surgery and treatment for it.

Although the PSR stated that the cancer is cured, the accused advised me on the date of the sentencing hearing that he has recently beenadvised by his doctor he has “spots” on his chest and liver. He has follow-up tests and medical appointments scheduled. It is not clearwhether this is a further cancer diagnosis and if so, what the treatment and prognosis will be. [46] A further collateral consequence of the charges laid in this case, were the harassment and threats by members of criminalorganizations in the rural community where he moved.

Consequently, he moved and sold his rural property. [47] The accused bears full responsibility for these impacts and collateral consequences to his family and himself. [48] He has a grade 11 education and technical workplace training related to safety, defensive driving, first aid, fall protection, aswell as forklift and sandblasting training. He worked various labourer jobs and then as an ironworker throughout Canada for 12 yearsand as a dock worker in Victoria, British Columbia for 5 years.

He currently has a window and gutter cleaning business in Winnipeg. [49] He has a history of significant alcohol abuse and serious cocaine abuse, including resorting to crime to support his habit. [50] He is now abstinent from drugs and alcohol due to the cancer diagnosis. [51] He is considered a medium risk to reoffend generally and an average risk to reoffend sexually. [52] The accused had many challenges growing up: physical discipline from his father, then losing his father due to crime, thensurrounded by members of his mother’s family who were engaged in crime, drugs and who physically abused him.

It is no wonder thathe left school to work at 17 with a new baby. It is no wonder he became addicted to drugs and crime to support his drug habit. He sayseverything turned around when he was in his twenties, which would have been 30 years ago, when he took drug treatment, entered themethadone program, and took parenting courses so he could parent his daughters.

Some of this information is not consistent with hiscriminal convictions for assault in 2012 and a fraud in 2013 when he would have been in his forties. [53] It also does nothing to mitigate the offending against K, which occurred many years after he professed to turn his life around. [54] I find that his moral culpability in committing this offence is not significantly reduced by anything in his life circumstances. The abuse and creation of the dangerous environment were ongoing for years. He had opportunities to stop abusing his daughter at anypoint. Instead, his behaviour seemed to escalate.

OTHER RELEVANT SENTENCING PRINCIPLES,

SECTION 718.2 Aggravating factors (section 718.2(a)) [55] It is statutorily aggravating that the victim was a child, (Criminal Code

section 718.2(a)(ii.1)), that the accused abused aposition of trust, (section 718.2(a)(iii)) and that the offence had a significant impact on the victim (section 718.2(a)(iii.1)). [56] This was not just any breach of trust situation. It was the victim’s father and they lived together as a family. This is moresignificant than if he had been an uncle or teacher. He owed K a duty to protect and care for her. Friesen recognized that the closer thetrust relationship, the more likely there would be increased harm (at para 126).

Friesen also recognized that the presence of a trustrelationship may inhibit children from disclosing the abuse because of fear and shame (see para 127). That was the case here – thevictim feared the impact of disclosing the abuse on the family, particularly because the accused told her frequently not to tell her motheror it would “ruin everything”, and started giving her money as she got older, which she understood to be in exchange for her silence. Shedid not want to be responsible for breaking up the family.

Friesen recognized that the fear is especially pronounced where there is alsodomestic violence, also a factor in this case (see para 128). The breach of trust situation increases the sentence. [57] One of the most significant aggravating factors in this case is the frequency and duration of the abuse. The Supreme Court inFriesen noted that the long-term emotional and psychological harm to the victim can become more pronounced where the sexualoffending is repeated and prolonged. It magnifies the severity of the offending and increases the accused’s moral culpability (seeFriesen at paras 131-132).

The Supreme Court stated that the duration and frequency of abuse must receive weight in sentencing, andfurther stated: In sum, sexual violence against children that is committed on multiple occasions and for longer periods of time should attractsignificantly higher sentences that reflect the full cumulative gravity of the crime. Judges cannot permit the number of violent assaults tobecome a statistic. Each further instance of sexual violence traumatizes the child victim anew and increases the likelihood that the risksof long-term harm will materialize.

Each further instance shows a continued and renewed choice by the offender to continue to violentlyvictimize children.

As Abella J.A. (as she then was) wrote in Stuckless (1998), [ (ON CA), [1998] OJ No 3177] wherethe offender has committed numerous assaults, the court cannot shy away from assessing the full dimensions of the wrong but must giveeffect to the "staggering" and "systematic" nature of the sexual violence in the sentence imposed (p. 116). [Friesen at para 133; emphasis added.] [58] The Supreme Court stated that likelihood to reoffend was a significant factor to consider in determining a fit sentence foroffenders convicted of child sexual offences.

The accused is an average risk to reoffend sexually. [59] In this case, the victim was between the ages of 9 and 13, which means she was very young when the abuse started, and inpuberty when it ended. She was particularly vulnerable when the abuse and the sexualized climate began because she was so dependent. Her personality and resilience were still developing (see Friesen at para 34). And in the critical early adolescence age, her ability todevelop personally and sexually was interrupted.

[ 60 ] There was some penetrative contact in this case, not as intrusive as in some cases: digital penetration over the clothes and sticking his finger in her bellybutton and wiggling it around. However, it is important not to attribute a lot of significance to the presence or degree of penetrative contact, which is related to outmoded notions of sexual propriety that have since been eschewed by Parliament and the common law. The emphasis is correctly placed on the interference with the child’s sexual integrity ( see Friesen at para 141 ).

In this case, in addition to the contact noted above, there was other significant physical interference with the child. The climate of sexual harassment and opportunism cannot be underestimated. The accused grabbed K’s vulva or breasts whenever he had a chance in his mother’s kitchen.

He asked her about masturbation, he masturbated in her presence, he took pictures of her in shorts and her bathing suit, he walked in on her in the shower, and he sent her graphically-worded sexual texts, pretending they were intended for her mother. [ 61 ] It is also important not to assume that the type of sexual acts correlate to the harm to the child ( see Friesen at para 142 ).

The Supreme Court strongly cautioned sentencing judges not to impose lower sentences because the offence was largely comprised of “sexual touching” rather than sexual intercourse, cunnilingus, or fellatio ( see Friesen at paras 143, 144, 146 ). Mitigating Factors (section 718.2(a)) [ 62 ] This is a sentencing after trial, so the mitigating factor of a guilty plea is absent. The accused’s attitude towards the offence and insight into his offending behaviour was not explored by the PSR writer.

At the sentencing hearing however, he expressed sadness and empathy towards K and her family, recognizing that it must have been a very distressing and emotional experience. He stated that he was truly sorry. He stated that his heart breaks for her, he wishes her happiness and wishes she achieves all her endeavours. [ 63 ] Although he considers himself to be of good character – and his mother, 29-year-old daughter and son consider him helpful, considerate, supportive and so on – none of these qualities were present during the long period of abuse towards K.

The pro-social aspects of his life, including his successful business with over 200 clients, is not uncommon for people convicted of child sexual offences; “self-presentation in public and conduct in private may not match” ( R v Pettitt , 2021 ABQB 773 at para 141 , citing R v Hepburn , 2013 ABQB 520 at paras 36-37 ). [ 64 ] As indicated above, there will be collateral consequences to the accused’s family if he is incarcerated. His mother is entering her older age and is dependent on some financial assistance from him and his help at home. His son is also dependent on some financial assistance from him.

All his family have frequent contact with him, and they will miss this if he is incarcerated. He will not be able to run his business. As noted in Pettitt , disruption of work and family life is a normal consequence of imprisonment; it is not exceptional. I take these impacts on his family as unfortunate, but they do not substantially mitigate the sentence I must impose. As for his medical situation, it is unknown currently. He is not ill at present. There was insufficient information about his medical condition and prognosis provided because it is unknown and therefore unavailable at this time.

It therefore has little impact to mitigate sentence. Parity (section 718.2(b)) [ 65 ] Subsection 718.2 (

b) of the Criminal Code requires that: [A] sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 66 ] The Supreme Court’s discussion of parity and proportionality in Friesen focused on addressing the ongoing and concerning degree of child sexual offending in our society. The Court made it clear that sentences for child sexual offences were too low in the past.

They must increase. [ 67 ] The Crown did not file any cases for the purpose of a parity analysis, asking me to take a principled approach to impose a proportional sentence, as outlined in Friesen . [ 68 ] The defence did not file any cases in support of his request for a CSO, candidly admitting that there are not any Manitoba cases where a CSO has been imposed in a case of sexual interference where a breach of trust is present. [ 69 ] He filed R v MPB , 2023 MBPC 11 , where the Crown sought two 2-year consecutive sentences and Judge Allen sentenced the accused to two 15-month consecutive sentences for sexually interfering with his 12- and 13-year-old biological daughters.

The acts were similar, although Judge Allen noted that they involved only one incident of abuse with respect to one girl, and two incidents of abuse with respect to the other daughter. The offender’s risk of recidivism was low. He had not taken any counselling, but he was open to it and Judge Allen found that he was a good candidate for counselling. The significantly mitigating factor in that case was that the accused confessed the offences to his wife, thus bringing them to light.

He pleaded guilty and was extremely remorseful, “It is mitigating that MPB’s admission was what brought these crimes to light” ( MPB at para 34 ). There are several distinguishing features in that case: The accused was sentenced for three incidents of abuse, as opposed to many, many incidents over several years; it appears that he did not have a criminal record; the abuse only came to light because of his confession; he was extremely remorseful and a good candidate for rehabilitation.

His sentence was nonetheless 30 months in the penitentiary. [ 70 ] In R v MAR-S , 2022 MBQB 165 , an uncle was found guilty of sexual abuse of his 9- to 11-year-old niece on five occasions over two years. The Crown sought a sentence of eight years, which Justice Bock characterized as “excessive”, cautioning that, “The principle of judicial restraint should be applied to prevent the process of sentencing from degenerating into an exercise in wrathfulness”; at the same time, he stated that the defence recommendation was “out of step with other recent sentences in Manitoba” (at para 31).

The offences involved touching the victim’s vaginal area both over and under her clothing, sometimes coupled with showing the child pornography and showing his penis and asking her to lick it. There was penetrative digital penetration and cunnilingus, each on one occasion. The impact on the victim was significant, as in this case. The accused was a “very low risk to reoffend”. The sentence was four and one-half years. [ 71 ] The defence also filed R v GJK , 2020 MBQB 130 . Although it was delivered after Friesen , the decision relies heavily on the Sidwell analysis ( R v Sidwell , 2015 MBCA 56 ).

The in-home childcare worker abused the seven- to nine-year-old child over a one-year

period involving two instances of egregious sexual touching and one instance of fellatio. The little girl was always required to remove all her clothing and the accused was also naked. The instances of “touching” were actually simulated sexual intercourse where the accused’s penis was between the child’s legs when he had placed her in the spooning position with him on the bed, and one time when he placed her on top of him so that she was straddling him and he required she touch his penis. This case has been eclipsed by Friesen .

It characterizes the offences as “touching” and underestimates the seriousness of the offences, because they did not involve intercourse. [ 72 ] Finally, the defence filed R v RA , 2022 ONSC 1161 . The accused was the 11-year-old victim’s stepfather. He kissed her using his tongue and touched the “inside” of her vagina. There had been two previous incidents of kissing her on the lips. The Crown sought a sentence of two years; the defence sought a CSO to avoid immigration consequences. Justice Goldstein sentenced him to six months on the kissing, concurrent to two years for the sexual interference.

The sentencing judge took many things into consideration, first and foremost that the Crown sought a sentence of two years. In this case, the Crown is seeking a sentence of 11 years.

The Court also took into consideration that the accused had no criminal record, no problems with drugs or alcohol, and would suffer collateral immigration consequences. [ 73 ] I take note of several cases from my court, where sentences of 4 years, 4 years, 6 years and 30 months (15 months on each of two children, consecutive) have been imposed in the past two years for sexual interference for single incidents. [ 74 ] In R v LJD , 2022 MBPC 48 , a young uncle (between 19 and 20 years old) took his five- to six-year-old niece to a private building on the family property and compelled her to perform

an act of fellatio on him. Judge Harvie took into consideration the victim’s young age, lack of trust in family members that she subsequently experienced, but also the intergenerational trauma, abuse and addictions issues which contributed to the accused’s behaviour. He also pleaded guilty and expressed remorse. He was sentenced to four years. [ 75 ] In R v Gratton , 2022 MBPC 56 , Judge Hewitt-Michta also imposed a sentence of four years for one instance of sexual interference, after trial.

The 12-year-old victim was an extremely vulnerable permanent ward of Child and Family Services, while the offender was 26 years old. He had struggles with substance abuse and some cognitive deficits, but they did not rise to the level of what might be considered a nexus to the offence. He engaged in oral sex with her on one occasion and had been grooming her to be in a sexual relationship with him for some time before that. [ 76 ] In R v RC (28 October 2021), Winnipeg 012-95627 (Man Prov Ct), the accused was a close family friend, like an uncle to the 11-year-old child.

He sexually abused the girl three times in an evening. Her parents had friends over for a celebration, and everyone was eating and drinking. He accosted her in the bathroom and kissed her on the mouth using his tongue. He then accosted her in her bedroom, kissing her, taking off her shorts and panties and touched her breasts, vagina, and bottom with his hands. He took his pants part of the way down and she saw his penis. The third time, she was in her bed sleeping when he came into the room, laid down beside her and was kissing her and tried to penetrate her either vaginally or anally with his penis.

He stopped only when another adult came into the room. He scored as a very low risk for sexual recidivism using the Static-99R tool. Judge Sholdice noted however, that the accused blamed the victim for coming on to him and had no insight into the offence. His supports did not believe that he had committed the offence and continued to allow him to have access to their children as a trusted friend and family member.

He was sentenced to six years. [ 77 ] I note that the “low” sentence of 30 months in the penitentiary was in circumstances where the accused appeared to be of previous good character, his confession is what brought the offences to light, and the Crown had asked for two-year consecutive sentences. [ 78 ] The ongoing nature and duration of the sexual offences committed by the accused in this case takes it out of the range of other recent Manitoba cases where there was only sexual offending against a child on one date (or two, in the case of MPB ).

SENTENCE [ 79 ] This sentence must reflect the objectives of denunciation and deterrence. The facts in this case are aggravating because of the ongoing nature of the abuse and the sexualized and fearful atmosphere created and maintained by the accused. K was a child and then a very young adolescent who lived in fear of being sexually assaulted for years. She is still living in fear. The impact on her has been significant.

There are no mitigating factors to reduce the enormity of the harm done in this case, and the sentence will reflect that. [ 80 ] It reflects the enormous harm that comes from the sexual abuse of a girl in her formative years by her only father figure. It is proportional with sexual interference cases from this court where even one incident can have dire consequences and attract a penitentiary sentence.

The offence demonstrates a high degree of moral culpability. [ 81 ] There are essentially no significant mitigating factors, only aggravating factors, most particularly the significant harm caused, the breach of a trusted relationship, the young and critical age of K, the sexual climate the child was forced to live in, stripping her of any teenage normalcy, and the fact the abuse took place in the sanctity of her family home or at her step-grandmother’s home. [ 82 ] Finally, in exercising the principal of restraint in this matter, I have reduced the sentence I would otherwise have imposed from eight years to seven years.

A sentence of less than seven years would be disproportionate. [ 83 ] The sentence will be seven years in the penitentiary. Ancillary Orders [ 84 ] The following ancillary orders are also made, pursuant to the Criminal Code : - DNA Primary,

section 487.051(1) - SOIRA registration requirement for a period of 20 years,

section 490.012

- 10-year weapons prohibition,

section 109 - No contact or communication with K or her immediate family while he is in custody,

section 743.21(1) - 10-year prohibitions pursuant to section 161(1) as follows: • 161 (1)(a.1) You must not attend within two kilometres of K’s residence, and two blocks from her school, place of worship or place of employment; • 161(1)(

b) You are not to seek, obtain or continue employment, become a volunteer in a capacity that involves being in a position of trust or authority over a person under the age of 16; • 161(1)(

c) You must not have any contact, including communication by any means, with a person who is under the age of 16 years except in unavoidable public encounters. [ 85 ] Costs and surcharges are waived. Original signed by Judge Devine CYNTHIA A. DEVINE, P.J.