HER MAJESTY THE QUEEN v. CARL ESLIGER, 2023 NBKB 94

R. v. Esliger 2023 NBKB 94 CCR-1-2021 COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF CAMPBELLTON BETWEEN: HER MAJESTY THE QUEEN -and- CARL ESLIGER Note: There is no ban on the publication of the victim’s identity as her request to revoke such ban was granted. Topic: Mandatory Minimum Sentence against Charter – Sexual Interference BEFORE: The Honourable Mr.

Justice Larry Landry AT: Campbellton, New Brunswick DATE OF HEARING: May 23, 2023 DATE OF DECISION (orally): May 23, 2023 APPEARANCES: Crystal McGraw for Her Majesty the Queen Luc Roy for Carl Esliger DECISION Landry, L. (Orally): [ 1 ] Carl Esliger must now be sentenced after having been found guilty of sexual interference on July 11, 2022.

[ 2 ] Sentencing has been adjourned a few times since the accused had filed two applications between the conviction and now. In the first one, he had asked this court to declare that it had lost jurisdiction over him and that the proceedings against him were a nullity. This application was denied on December 9, 2022. 1 [ 3 ] Then, he asked this court to strike down the mandatory minimum sentence for the offence of sexual interference, as being unconstitutional.

This application was originally set to be heard on February 24, 2023, but at the hearing, it was agreed by the parties that it was more suitable for this kind of application to be dealt with within the sentencing hearing. Mandatory Minimum Sentence [ 4 ] The minimum sentence for an offence of sexual interference under

section 151 (

a) of the Criminal Code of Canada is a term of imprisonment of one year. The first issue to be ______________________________________ 1 R. v. Esliger , 2022 NBKB 245 . decided, then, is the application of the accused aiming to strike down that mandatory minimum sentence as a cruel and unusual punishment contrary to s. 12 of the Canadian Charter of Rights and Freedoms and not saved by

section 1 of the Charter . [ 5 ] If the mandatory minimum sentence is struck, the accused then asks that any sentence of imprisonment imposed be served in the community.

Section 742.1 of the Criminal Code deals with such conditional sentences and states that it is not available when a minimum term of imprisonment is prescribed. 2 [ 6 ] Mandatory minimum sentences are common in Canada, more so for offences involving drugs, firearms and violent offenders. They cover a wide variety of crimes, including sex offences against children. [ 7 ] Since there are well over a hundred crimes with mandatory minimum terms of imprisonment, there are also more and more cases challenging those sentences as violating

section 12 rights against cruel and unusual punishment. [ 8 ] Since 2015, the Supreme Court of Canada has developed an analytical framework to determine whether such a sentence does in fact violate

section 12 of the Charter , in the cases of R. v. Nur 3 , involving the possession of prohibited firearms, and R. v. Lloyd 4 , a case involving ______________________________________ 2 Criminal Code , R.S.C. 1985, c. C-46, s. 742.1 (b). 3 2015 SCC 15 . 4 2016 SCC 13 . possession of drugs for the purpose of trafficking. Former Chief Justice Beverley McLachlin summarized the two questions that arise in such cases:

The first is whether the provision results in a grossly disproportionate sentence on the individual before the court. If the answer is no, the second question is whether the provision’s reasonably foreseeable applications will impose grossly disproportionate sentences on others. 5 [ 9 ] If the answer is yes to at least one of the two questions, the law then violates s. 12. [ 10 ] Here, the answer to the first question is obviously no.

As we will see in the part of this decision dealing with the actual sentencing of the accused, a one-year term of imprisonment for the accused before me would not be grossly disproportionate. [ 11 ] Six courts of appeal 6 across Canada have already answered the second question by deciding that the mandatory minimum sentence of one year would be grossly disproportionate for sexual interference in reasonable hypothetical cases. I will only quote from one reasonable hypothetical coming from the British Columbia Court of Appeal: Consider a case in which two young people meet at a party attended by other young people.

One is almost 16 years old. The other turned 21 years old a few months earlier. The close-in-age exception is inapplicable by a few months and certainly less than one year. The two people drink alcohol and smoke marihuana. ______________________________________ 5 R. v. Nur , 2015 SCC 15 at paragraph 77 . 6 Caron Barette c. R ., 2018 QCCA 516 , R. v. Hood , 2018 NSCA 18 , R. v. JED , 2018 MBCA 123 , R. v. Scofield , 2019 BCCA 3 , R. v. B.J.T. , 2019 ONCA 694 and R. v. Ford , 2019 ABCA 87 . They are not drunk but their inhibitions are reduced.

Finding that they are attracted to each other, they find a private bedroom. They engage in some kissing and brief sexual touching over their clothing, but they do not undress or have intercourse. After approximately ten minutes, they return to the party. During their time together, they act willingly, knowing each other’s ages. Neither person has a criminal record. This is the only occasion where either one engages in this kind of conduct with each other. 7 [ 12 ] The B.C.

Court of Appeal found that imposing a one-year mandatory jail term in those circumstances would be grossly disproportionate, that it “ would shock the conscience of Canadians, and would be cruel and unusual punishment ” 8 [ 13 ] That case or various reasonable hypothetical circumstances found in the other previously quoted cases would most likely lead to sentences where no jail would be imposed. [ 14 ] However, the Crown submits that the landmark Supreme Court of Canada decision in R. v. Friesen 9 calls into question the correctness and validity of the prior appellate decisions.

As we will see in the last part of this judgment, the Friesen decision has seriously impacted sentencing law in cases of sexual offences against children. [ 15 ] Nevertheless, there will still be cases, most probably the same reasonable hypotheticals discussed in appellate decisions, where the one-year minimum imprisonment will be grossly disproportionate. ______________________________________ 7 R. v. Scofield , 2019 BCCA 3 at paragraph 82 . 8 Ibid. , at paragraph 83 . 9 2020 SCC 9 .

[ 16 ] For instance, in a post- Friesen case 10 also dealing with the constitutional validity of a mandatory minimum sentence, the British Columbia Supreme Court declared it inconsistent with s. 12 of the Charter . This was for a charge of sexual exploitation under s. 153(1) of the Criminal Code , which provided for the same one-year minimum imprisonment. Sexual exploitation is very close to sexual interference, the main difference being that the accused is in a position of trust or authority towards a young person, or the young person is in a relationship of dependency.

The mandatory minimum sentence was declared of no force and effect. [ 17 ] I would then agree with the six courts of appeal from other provinces and declare that the mandatory minimum sentence of one-year imprisonment in s. 151 (

a) of the Criminal Code breaches s. 12 of the Charter and is a cruel and unusual punishment. [ 18 ] As no evidence nor any submission was proffered by the Crown to show that

section 1 of the Charter could save the impugned provision, I would have no choice but to declare that the provision is of no force or effect, as per section 52(1) of the Constitution Act of 1982 . 11 Doctrine of Mootness [ 19 ] Instead, the Crown is asking me not to decide the issue because the defendant’s application is moot. In other words, the Crown contends that it is obvious that an appropriate ______________________________________ 10 R. v. D.M., 2021 BCSC 379 . 11 The Constitution Act , 1982,

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 . sentence in this case would be real imprisonment of at least one year, i.e. equal to or greater than the mandatory minimum. In that case, this court’s decision on the application would be of no effect on the matter between the Crown and Carl Esliger. [ 20 ] Crown relies on a recent case of my colleague justice Robert Dysart in R. v. Allen . 12 Dysart, J. was asked to rule on the constitutional validity of parts of s. 742.1 dealing with conditional sentence orders.

An accused had pleaded guilty to a charge of possession of methamphetamine for the purpose of trafficking, for which a conditional sentence order was not possible. [ 21 ] Dysart J. decided that a conditional sentence order would not be a fit sentence for Mr. Allen, even if it would be available. He then added that the Charter argument was moot and that he did not need to consider it. [ 22 ] I note that in the Allen decision, defence was relying on an Ontario Court of Appeal decision in which the relevant sections of the Code had been struck down for being unconstitutional.

The Ontario decision was under appeal to the Supreme Court of Canada 13 and at the same time, amendments to the Code were at the second-reading stage in the House of Commons, which would make a conditional sentence order available for consideration in cases of possession for the purpose of trafficking. It was then obvious that one way or the other, the ______________________________________ 12 2022 NBQB 143 . 13 The Supreme Court later overturned the Ontario Court of Appeal decision: R. v. Sharma , 2022 SCC 39 . issue would be resolved either by the Supreme Court or Parliament.

As he decided that a conditional sentence was not a fit sentence, there was no need to decide the constitutional issue.

[ 23 ] In the case before me, the context is different. Although the mandatory minimum sentence for sexual interference has been struck down in six provinces encompassing more than 90% of Canadians, it is not clear if it would apply in New Brunswick. I am not bound to follow decisions of other provinces, although they may be persuasive. I was not told of any upcoming decision on the issue from our Court of Appeal or the Supreme Court. [ 24 ] The legislative amendments on conditional sentence orders discussed in R. v. Allen were eventually adopted and made those orders available again for many offences, but the mandatory minimum sentence remained in s. 151(

a) of the Code , i.e. for sexual interference. [ 25 ] Crown quoted again the case of R. v. Lloyd to show that this court does not have to rule on the constitutional challenge of the mandatory minimum sentence. However, the Supreme Court said that “ the doctrine of mootness should be flexibly applied.

If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case.” 14 This would also be the same for the Court of King’s Bench, which is a court of inherent jurisdiction that can deal with this kind of issue. ______________________________________ 14 2016 SCC 13 at paragraph 18 . [ 26 ] In fact, in the recent case of Griffith v. R. 15 , the Quebec Court of Appeal dealt with a very similar case.

The sentencing judge declined to decide the constitutional validity of a mandatory minimum sentence as he was going to sentence the accused to a much higher term of imprisonment.

The Court of Appeal rejected that approach and stated : [TRANSLATION] Thus, when a superior court can express an opinion on the constitutionality of a mandatory minimum sentence, it should do so, since declining to determine the issue "would . . . require that other courts and justice system participants spend additional resources in the longer term". 16 [ 27 ] For the case before me, both the Attorneys General of Canada and New Brunswick were served with the appropriate notice for a constitutional challenge of a piece of legislation.

The Attorney General of Canada decided not to participate at this stage but asked to be notified if there is an appeal. [ 28 ] Both parties made written and oral submissions on the constitutionality of the mandatory minimum sentence. If it offends

section 12, the Crown does not advance arguments on

section 1 of the Charter . I take it to mean that it is conceded that

section 1 would not save the impugned provision. ______________________________________ 15 2023 QCCA 301 . 16 Ibid., at paragraph 64.

[ 29 ] In any event, the Supreme Court of Canada stated, in R. v. Bissonnette 17 that: it is hard to imagine how a punishment that is cruel and unusual by nature could be justified in a free and democratic society. I note that, in Nur , this Court stated that it would be difficult to show that a “grossly disproportionate” punishment under s. 12 could be “proportionate as between the deleterious and salutary effects of the law under s. 1” . [ 30 ] For those reasons, I make a declaration that the mandatory minimum sentence in s. 151 (

a) of the Criminal Code is unconstitutional and of no force and effect. Sentence [ 31 ] Now, I must decide what would be a fit sentence for Carl Esliger. [ 32 ] On July 11, 2022, he was found guilty of sexual interference and sexual assault on Emma MacMillan. A stay of proceedings was ordered on the sexual assault charge to avoid multiple convictions arising of the same facts. [ 33 ] I read the facts as I found them to be when I rendered my decision following trial, last July, and I will not repeat them. I will just briefly summarize what happened.

On November 18, 2018, Carl Esliger touched Emma MacMillan with his hands on her breasts, over and inside ______________________________________ 17 2022 SCC 23 at page 121 . her bra, during a trip from Petit-Rocher to Lorne. Then, when they arrived in Lorne, he stopped in a secluded area, went outside the vehicle, took snow and put it directly on her breast area, with his hands. Those touchings were for a sexual purpose.

Since the victim was under the age of 16 years, it is called sexual interference, the crime defined at s. 151 of the Criminal Code . [ 34 ] At the time, Emma MacMillan was 15 years old, and Carl Esliger was her stepfather. He was 47 years old. [ 35 ] The Crown submits that the appropriate sentence is a jail term in the range of 18-24 months followed by 2 years of supervised probation. Defence suggests a term of two years less a day but asks that it be made part of a conditional sentence order, in other words, that Mr.

Esliger should be allowed to serve his sentence in the community, on what is commonly known as house arrest. Then, he could be on probation for three years. [ 36 ] If a conditional sentence order is not granted, the accused argues that a 90-day intermittent sentence would be appropriate. [ 37 ] The maximum term of imprisonment under this

section is 14 years. Further to today’s decision on the constitutional issue, there is no minimum jail term. [ 38 ] I must then determine a fit sentence for Mr. Esliger, taking into account his own personal circumstances as well as the circumstances of the offence. [ 39 ] The purpose and principles of sentencing are found at sections 718 and following of the Criminal Code . As well,

section

718.01 applies to offences against children and states that in those cases, primary consideration should be given to the objectives of denunciation and deterrence of such conduct.

Courts must also look at the other objectives: to separate offenders from society if need be, to assist in rehabilitating offenders, to provide reparations for harm done to victims or to the community and to promote a sense of responsibility in offenders, and acknowledgment of the harm done to the victims or to the community. [ 40 ] Now, since April 2020, a change of paradigm has emerged in sentencing law involving sexual offences against children. The Supreme Court of Canada decision in R. v. Friesen 18 will likely have the effect of increasing the duration of incarceration for such crimes.

Chief Justice of Canada Richard Wagner and Justice Malcom Rowe wrote this at paragraphs 5 and 42: 5. (…) 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. 42.

Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual ______________________________________ 18 2020 SCC 9 . offences against children in the Criminal Code . Our society is committed to protecting children and ensuring their rights and interests are respected. As Otis J.A. stated in R. v. L. (J.-J.), [translation] “the protection of children constitute[s] one of the essential and perennial values” of Canadian society (p. 250).

Protecting children from becoming victims of sexual offences is thus vital in a free and democratic society. [references omitted] [ 41 ] Other principles have been set by the Supreme Court in Friesen . For instance, sentences and sentencing ranges based on prior court cases should be increased for sexual offences against children. It is now also crystal clear: sexual offences against children should generally be punished more severely than sexual offences against adults. [ 42 ]

Section 718.2 of the Criminal Code lists other principles to take into consideration, including mitigating and various aggravating factors. A sentence should also be similar to sentences imposed on similar offenders for similar crimes committed in similar circumstances. As well, an offender should not be deprived of liberty if less restrictive sanctions may be appropriate. [ 43 ] Carl Esliger is now 53 years old. Since this offence, he is back with his wife. They have two adult daughters. They are married since 23 years and separated for about four years, during which time Mr.

Esliger had an 18-month relationship with the victim’s mother. [ 44 ] As mitigating factors, I can mention that Mr. Esliger has the support of his family and until these events, has been a productive member of society. He worked as a truck driver since the age of 17. He had no criminal record before this conviction. His presentence report is generally positive, and he collaborated well with the probation officer who prepared it. His lawyer also mentions that because of this conviction, his client lost his employment and will suffer harsh consequences.

I cannot consider this as a mitigating factor, but it is part of the circumstances of the accused, which we always take into consideration when passing sentence. [ 45 ] The victim had just turned 15 a few weeks before the sexual interference. The breach of trust is also an aggravating factor. Emma MacMillan was looking up to Carl Esliger and had a good relationship with him before the events. The facts surrounding the offence are disturbing as Mr.

Esliger was trying to blackmail her, telling her that she had to pay if she did not want him to tell her mother she was smoking. [ 46 ] In Friesen , the Supreme Court emphasized that: courts must recognize the wrongfulness of sexual violence even in cases where the degree of physical interference is less pronounced. (…) sexual violence against children remains inherently wrongful regardless of the degree of physical interference 19 .

______________________________________ 19 R. v. Friesen , 2020 SCC 9 , at paragraph 145 . [ 47 ] And I also quote from par. 74 of the same decision: In particular, taking the harmfulness of these offences into account ensures that the sentence fully reflects the “life-altering consequences” that can and often do flow from the sexual violence (…). 20 [ 48 ] The impact of this crime on Emma MacMillan has been dramatic, as we can see in her victim impact statement. I commend her for having been able to put it in words.

I could read her whole statement as part of this decision, but I will only quote a few excerpts: The emotional impact which this event has had on my life is a variation of things. Some of which include extreme anxiety (separation and social) and depression. All of which were diagnosed during a time of therapy I needed to undergo after the fact. I also have extreme trust issues with everyone in my life as he was a person whom I trusted, and he then betrayed that trust. Since this act occurred, I no longer feel safe anywhere. I have developed extreme fears of men with any sort of resemblance to my offender.

For the first year or so after this occurred, I slept with my bedroom door locked and I still do this if I am sleeping anywhere with a man present. All men, my family members included, make me extremely uncomfortable. I do not feel comfortable simply because they are men. [ 49 ] Usually, judges are guided by ranges of sentences provided by appellate courts. Those ranges are not mandatory, but courts should consider them, even if they can sometimes ______________________________________ 20 R. v. Friesen , 2020 SCC 9 , at paragraph 74 . depart from them.

But since the decision in Friesen , our Court of Appeal did not have the opportunity yet to deal with a range of sentences for sexual offences against children. [ 50 ] Justice Denise LeBlanc, when she was still a member of this court, reviewed thoroughly the Friesen case before imposing sentence in R. v. Durelle . 21 The 80-year-old accused plead guilty to sexual interference on a 12-year-old girl. The victim was often going at his place as it was a daycare.

The wife of the accused was the main caregiver, but the child had many contacts with the husband. [ 51 ] The touching of a sexual nature happened in a car, when the accused, who was 71 years old at the time, was driving the victim to her residence. The accused grabbed the victim’s breast, under her clothes, and tried to put his hand between her legs but she told him to stop and achieved to prevent him from going further. As in this case, the sexual touching had serious emotional consequences on the victim. LeBlanc J. imposed an 18-month jail term.

The mandatory minimum sentence was still in effect, but it was not challenged in that case. [ 52 ] What is then an appropriate sentence for Carl Esliger?

[53] Even though I declared that the minimum punishment of imprisonment for one year is no longer in effect, it goes withoutsaying that a sentence of imprisonment will be ______________________________________ 21 2022 NBBR 67 , 2022 NBKB 67. imposed.

And after examining all the circumstances of the accused and of the offence, it will be of less than two years. [54] Now, because the minimum punishment of imprisonment is no longer in force, a conditional sentence of imprisonmentbecomes one of the possible sentences if all other criteria are met. [55] In this case, I am convinced that the service of the sentence in the community, with proper conditions, would notendanger the safety of the community.

However, would it be consistent with the fundamental purpose and principles of sentencing setout in sections 718 to 718.2 of the Criminal Code? [56] Counsel for the accused has submitted a few cases decided after Friesen and in which courts across Canada have acceptedto grant conditional sentence orders for sexual interference or other sexual offences against children. They show that it is possible for thiscourt, in exceptional circumstances, to impose a term of “house arrest”. [57] That being said, all those cases can be distinguished from the present situation.

In two of them22, the accused were both suffering from development delays or significant cognitive difficulties. In two other cases23, the offences dated from 25 or 30 years ago,when the maximum jail terms were of 10 and 5 years respectively, as opposed to 14 now. ______________________________________ 22 R. v. Vaux, 2021 BCSC 1773 and R. v. Scott, 2021 NSPC 42. 23 R. v. Campbell, 2021 BCSC 323 and R. v.

P.S., 2021 ONSC 5091. [58] In the fifth case24, which was decided in the first year of the pandemic of COVID-19, Justice Chris De Sa of the OntarioSuperior Court of Justice wrote this, at paragraph 31, to justify a conditional sentence order which would not usually be granted:“However, these are exceptional times. With the ongoing pandemic, I do have some concerns with incarcerating Mr. K.K. given his ageand his underlying health conditions.” [59] None of those circumstances are present here, nor are there any other special circumstances that would convince me toaccept ordering a conditional sentence.

The objectives of deterrence and of denunciation are paramount and, in this case, such aconditional sentence would not serve well those objectives. [60] The moral culpability of the offender is high. I have considered all mitigating and aggravating factors, including the harmcaused to the victim, the breach of trust, as well as the principles of proportionality and parity of sentences. I have reviewed thevoluminous jurisprudence submitted by the Crown and Defence. For all those reasons, I am convinced that a true term of incarceration isrequired. [61] From the evidence I have before me, I agree with Mr.

Esliger’s lawyer that this appears to be an isolated event, a one-time mistake and even though we don’t have an evaluation of the risks of reoffending, I am quite convinced that Mr. Esliger has learnedhis lesson and will understand that this was not just a joke that went too far. This was completely unacceptable behaviour with severeconsequences for everyone involved. ______________________________________ 24 R. v. K.K., 2020 ONSC 7198.

[ 62 ] For the sexual interference against Emma MacMillan which happened on November 18, 2018, I sentence Carl Esliger to a term of imprisonment of 18 months. [ 63 ] Probation will not be necessary after incarceration. [ 64 ] Some mandatory orders must come with this sentence. [ 65 ] Therefore, I order a firearm prohibition, as per s. 109 of the Criminal Code , beginning now and ending ten years after his release from imprisonment.

For some restricted or prohibited firearms, weapons, devices and ammunition, the prohibition is for life. [ 66 ] I also make an order authorizing the taking of samples of bodily substances reasonably required for the purpose of DNA analysis, pursuant to s. 487.051(1) of the Criminal Code . [ 67 ] I order the accused to comply with the Sex Offender Information Registration Act , which is mandatory under s. 490.012 (1) of the Criminal Code . That provision of the Code has been declared of no force or effect 25 because it infringes s. 7 of the Canadian Charter of Rights and Freedoms .

However, the Supreme Court has suspended its declaration for a period of one year, so it is still in force until next fall. The duration of the order is 20 years because the maximum term of imprisonment for sexual interference is 14 years. ______________________________________ 25 R. v. Ndhlovu , 2022 SCC 38 . [ 68 ] There is also a mandatory victim surcharge of $200 pursuant to s. 737 of the Criminal Code .

It must be paid within six months, otherwise two days of jail will be added. [ 69 ] Some other orders are within the discretion of the court. [ 70 ] Pursuant to s. 743.21 of the Criminal Code , I am issuing an order prohibiting the accused from communicating, directly or indirectly, with Emma MacMillan and Penny MacMillan during his detention. [ 71 ] I was asked by the Crown to consider issuing orders of prohibition under s. 161 of the Criminal Code . I did consider this seriously. However, for the same reasons as I decided that probation is not necessary, I will not grant such orders. Mr.

Esliger has been dealing with these charges for four years and a half now and did not try to contact the victim or her mother nor did he have other involvement with the law since. Nothing indicates that prohibition orders are necessary.