R v GSL, 2023 MBPC 50

CITATION: R v GSL , 2023 MBPC 50 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN His Majesty the King ) ) K. Hart and D. Queau-Guzzi for the Crown ) ) - and - ) ) ) G.S.L. Accused ) ) L. Kellie-McMillan for the Accused ) ) ) ) Judgment delivered: November 16, 2023 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on Publication Pursuant to s. 486.4(1) of the Criminal Code , any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence.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 GSL after trial for sexually interfering with his 12-year-old niece, T ( see R v GSL , 2023 MBPC 10 ). He was not her biological uncle, but had been in a relationship with the child’s aunt for seven years, and she considered him and called him uncle. The offending behaviour consisted of one event, which has had profound consequences for the victim and her family. Part of the aggravating feature of the offence is that the offender had similarly sexually interfered with this victim’s sister on two dates just before and just after this offence.

GSL was convicted after trial and sentenced on that offence by Judge Killeen to 18 months in jail and two years of supervised probation, on June 9, 2021 ( see R v GSL , unreported (9 June 2021), Winnipeg, 012-98143 (Man.PC), ( GSL 2021 )).

At the time of the other trial and sentencing, Judge Killeen was not made aware of the similar offence committed against this victim. [ 2 ] The Crown is seeking a sentence of four years in the penitentiary, citing the profound harm caused to the victim by the offence, compounded by her sister’s suffering at the hands of the same abuser, and the harm to the family, again, compounded by the fact that not one, but both of the girls in the family were sexually abused by him.

The factors that Judge Killeen took into account to mitigate a lengthier sentence in the previous case have now been exposed as absent: this was not a singular instance of child abuse, out of character for the accused; he has not stopped drinking, which Judge Killeen found was one of the main risk factors of his reoffending; and the people surrounding him will not in fact act as brakes from potential future child abuse as Judge Killeen found to be the case, because his current supports are of the opinion he is innocent of these offences.

The Crown also relies on the fact that in the previous case before Judge Killeen, the Crown had proceeded summarily and were thereby limited to seeking a maximum sentence of two years less a day, whereas they have proceeded by way of indictment in this case. [ 3 ] The defence is seeking a sentence of 18 months in jail, the same sentence that the accused received from Judge Killeen for sexual interference against this victim’s sister, arguing that the offences occurred at the same time and demonstrate that this short offending period was out of character for GSL, almost akin to a spree, and as dictated by the principle of parity.

FACTS OF THE OFFENCE

[4] On November 22, 2018, T stayed home from school to finish a homework assignment. She was an anxious 12-year-old withgood marks and she received permission to stay home to finish the assignment. The rest of the family had gone to school or work, exceptfor GSL, who was enrolled in a nearby residential treatment program for his chronic alcoholism. The program was structured to allowparticipants to use day times for the purpose of obtaining employment or training. GSL did not; instead he sometimes hung out at T’sfamily’s home with his partner, the child’s aunt.

The aunt was at the mall at the time the offence occurred. T asked her uncle for somehelp with her homework. He came into the office where she was working. Instead of helping her with her assignment, he sexuallyinterfered with her. He lifted her up onto the desk and put his hands under her shirt. At first she thought it was one of his pranks,because he would often put his cold hands on her bare skin after coming inside on a chilly day. But, it did not end as a prank. He laidher back onto the desk, held one of her wrists and started rubbing up and down her body.

He took her shirt off and touched hereverywhere, including her breast, which he was squeezing over her sports bra. She was scared and did not know what was happening. She started to fight him, but he easily overpowered her, pinning her other wrist down with the same hand. T weighed about 115 to 120pounds at the time; GSL weighed close to 300 pounds. He then pulled down her pants, getting them as far as her knees. He grabbed herbum under her panties, squeezing and grabbing it, “almost like a dodgeball” as T testified.

He essentially laid on top of the child, movinghis body on top of hers, rubbing his chest on her chest, stomach and legs. They heard the door to the house open and he abruptlystopped, getting an angry look on his face and throwing her shirt at her. He left the room and she stayed back until she was calm enoughand satisfied that she was no longer alone in the house with him. She was never alone with him again.

SENTENCING CHILD SEXUAL OFFENCES: THE RELEVANT SENTENCING PRINCIPLES [5] 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.

In this case, theobjectives that are engaged are denouncing the offender’s conduct and the harm done to the victim and her family, deterring him andothers from committing sexual offences against children, separating him from society in order to protect children in future, and finally, topromote a sense of responsibility in him, and acknowledging the harm done to victims and the community. [6]

Section 718.01 of the Criminal Code, which was enacted in 2005, requires that when the court is sentencing an offence thatinvolves the abuse of a child, primary consideration must be given to the objectives of denunciation and deterrence.

Section 718.04provides that when the victim is a vulnerable person, such as an Indigenous, female person, again, the primary consideration must bedenunciation and deterrence. [7] 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 SaundersJ.A. in R v DRW, 2012 BCCA 454 at para 32). (See also R v KNDW, 2020 MBCA 52 at para 2; R v Alcorn, 2021 MBCA 101 at paras32-34). There is little choice for Canada: there is an increase in police-reported child sexual abuse.

We know about the reported cases ofthousands of children in Canada sexually abused each year, but “it is clear that such reports understate the occurrence of these offences”(Friesen, at para 46, in reference to R v L(WK), (SCC), [1991] 1 SCR 1091, at pp. 1100-1101). [8] Concomitant with the deepening understanding of the serious and long-term effects of child sexual abuse as comprehensivelydiscussed in Friesen, are increasing sentences for these crimes (see R v KDM, 2021 MBQB 107 at paras 23 – 24). “[M]id-single digitpenitentiary terms for sexual offences against children are normal . . .

We would add that substantial sentences can be imposed wherethere was only a single instance of sexual violence” (Friesen, at para 114). [9] 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). [10] 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. [11] Overarching those objectives is the fundamental principle of sentencing: proportionality.

The sentence imposed must beproportional to the gravity of the offence and the degree of responsibility the offender had when they committed the offence. PROPORTIONALITY: THE SERIOUSNESS OF THE OFFENCE [12] 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 crimeon its victims and the people around them (Friesen, at para 74, citing R v Woodward, 2011 ONCA 610, at para 76). Sexual offencesagainst children are now referred to as “sexual violence” because they are “violent crimes that wrongfully exploit children’svulnerability and cause profound harm to children, families, and communities” (Friesen, at para 5). [13] Sentences have become lengthier (see Friesen, at paras 106-114; KNDW, at para 38).

[14] T’s personal autonomy, that is, her “right to develop to adulthood free from sexual interference and exploitation by adults” wastaken away from her by this offence (Friesen, at para 52, with reference to R v Sharpe, 2001 SCC 2, at para 185). [15] T’s parents and her therapist provided victim impact statements as part of the sentencing. The victim impact statementsdemonstrate the profound impact of this offence, to all aspects of T’s life and development. It also demonstrates how devastating it is toparents when a trusted family member abuses their own child under their roof.

The impacts described in the victim impact statementsconfirm what we already know about child sexual abuse (from Sharpe and Friesen). The victim impact statements provide evidence,again, about the devastating impacts of child sexual abuse, especially where the offender is a known, trusted family member. [16] Her parents’ victim impact statement states that T went from being a balanced, happy and carefree little girl to “an anxiousshell” who crumbled and whose world fell apart.

When she should have been hanging out at the mall or with her friends at concerts orage-appropriate events, she was instead, attending therapy appointments to help her cope with the trauma this offence caused. Shesuffered anxiety, depression, nightmares, panic attacks, post-traumatic stress disorder (PTSD) and lost trust in males. She sufferedacademically. Her parents write that the offender took away her spirit, trust and innocence. [17] T’s therapist had seen her bi-weekly for two years at the time of writing her victim impact statement. Their work focused onmitigating the impact of post traumatic symptoms.

Her therapist wrote about T’s struggle to communicate with friends and communityabout what happened. They met as T prepared for court dates, juggling studying for exams, completing school projects with dateslooming and rushing off to hockey practice. She had daily feelings of fear, powerlessness and anxiety. She worried about beingbetrayed, not being believed; she held people at arms-length. “[T]here is no area of her life that has been untouched by the abuse.” [18] The ripple effects of the abuse on T was similarly described in Friesen (see para 63).

The family moved from their foreverhome and community, because their home was “no longer a safe haven, but rather a dark, sad, dreadful, scary and triggeringenvironment” (victim impact statement of the parents). The family experienced significant financial strain: loss of wages to take T tomedical appointments, picking her up from school when “she just couldn’t be there”, staying home with her when she could not get outof bed, therapy and equine therapy sessions, out of pocket medication costs, and exhaustion of their health insurance.

All the childrentrust less, stay guarded and live life with cautious thoughts restricting their interactions and ability to develop strong relationships withothers. [19] These statements echo Friesen at paragraph 58: Sexual violence can interfere with children’s self-fulfillment and healthy and autonomous development to adulthood precisely becausechildren are still developing and learning the skills and qualities to overcome adversity (Sharpe, at paras. 158, 184-85 and 188, perL’Heureux-Dubé, Gonthier and Bastarache JJ.; G. Renaud, The Sentencing Code of Canada: Principles and Objectives (2009), at §12.64).

For this reason, even a sinGSLe instance of sexual violence can “permanently alter the course of a child’s life” (Stuckless (2019),at para. 136, per Pepall J.A.).

As Otis J.A. explained in L. (J.-J.), at p. 250: [TRANSLATION] The shattering of the personality of a child at a stage where [the child’s] budding organization as a person has only avery fragile defensive structure, will result — in the long term — in suffering, distress and the loss of self-esteem. [20] This interference with normal teenage development was echoed in the therapist’s victim impact statement: For many of us it is hard to remember what it was like to be a teenager – a time of self-exploration, defiance, and joyful rebellion.

Theimpact of this violation has meant that T has focused more on finding a sense of safety in her body, in the classroom and with her friendsthan growing and developing in life and in relationships as all teenagers need to.

The rules that she learned in the face of the abuse haveformed the framework for how she forms relationships in the world, and while we have worked very hard to push back against these, theblueprint that has been left by the trauma is “will you manipulate or use me?” rather than “what experiences do we share?” Thisfoundational framework for building relationships is what she will take into adulthood with her. The impact is not just in her past but ithas robbed her of a part of her future. (See also para 61 of Friesen.) [21] In

summary, the seriousness of this offence should not be underestimated because it happened only once and did not involvemore intrusive sexual acts. [22] The emotional, spiritual, physical, sexual, social, mental, psychic and economic toll has been significant. Future long-termharm is unknown at this time, although T and her family have worked very, very diligently to mitigate the impacts. [23] 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 T in testifying and her family 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 (S.C.C.), at para. 200).

PROPORTIONALITY: THE CIRCUMSTANCES AND MORAL CULPABILITY OF THE OFFENDER [ 24 ] 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, with reference to R v Morrison , 2019 SCC 15 at para 153 ). Like other offenders who have come before the courts, this offender recognized T’s particular vulnerability and intentionally exploited it to satisfy his sexual impulses. He took advantage of his family status to abuse this child.

As the majority noted in Friesen , “Children are most vulnerable and at risk at home and among those they trust” (at para 66). [ 25 ] The breach of trust also increases his degree of responsibility in committing these offences ( see Friesen at para 129 ). [ 26 ] He only stopped when interrupted. [ 27 ] This was not an isolated incident. He was sexually abusing T’s sister in the same time frame. [ 28 ] The offender was 47 years old when he committed this offence. He had access to the children because of his relationship with their aunt.

By all accounts unhealthy, he ended the relationship with the aunt several months ago, due to her continuing abuse of crack cocaine. He too has a long-standing substance abuse problem, with alcohol. His relationship with the children’s aunt was marked by domestic disputes and sometimes violence, involving the police on more than one occasion. He was charged on one occasion, but the case was dismissed. [ 29 ] He was adopted at birth and did not learn he was adopted until he was 12 years old; this information shocked him.

He has learned from Child and Family Services (CFS) files that his background is Métis and Icelandic. He met some of his biological family, but has not maintained a relationship with them. He has one adoptive brother with whom he does not have a close relationship. His parents argued a lot, but there was no violence. His father was a water works worker for 35 years. GSL did not have a good relationship with his parents, but would move out and move back in over the decades. He currently lives with his mother, who has been a chronic alcoholic for as long as he can remember.

His main supports currently are an elderly aunt and uncle, who became involved in his life only recently. The aunt and uncle do not believe him to be guilty of the offence, the aunt noting his relationship with T’s aunt was toxic and “that family put the kids up to it to make him pay”. His uncle does not believe he is a “child molester”. His only friend interviewed for the Presentence Report (PSR) noted that they have been friends for about 30 years.

He too does not believe that the offender is guilty of the offences against the girls in this family, “I personally don’t believe the charges and I feel he was set up.” [ 30 ] GSL has suffered from panic attacks and an anxiety disorder in the past and has accessed treatment resources. [ 31 ] He has a Grade 12 education, a diploma in computer programming/analysis and several training courses since, in the areas of communications, marketing, and installation, configuring and management of VMware vSphere and most recently he started but did not finish a course in network administration.

He has held positions in a number of organizations related to computers, software, servers, telecommunications and multifunction equipment. [ 32 ] He is an admitted alcoholic for 15 years. He had been sober after being released from his last custodial sentence until March 1, 2023 when he was found guilty of this offence. He relapsed, became sober again, but at the time of the sentencing hearing was drinking again.

The original sentencing date on June 29, 2023 had to be adjourned because that morning he drank 12 beers, took 40 Diazepam 5 mg pills and 20 Lorazepam 1 mg pills and superficially slashed his left wrist. He was discharged from hospital later that day and followed up in about a week. The medical report filed in the sentencing hearing indicated he was drinking excessively and regularly. [ 33 ] After having gastric by-pass surgery in 2006, alcohol became a problem for him – he would drink between 12 and 24 beers a day.

He completed River Point Treatment Centre through the Addictions Foundation of Manitoba three times in the past – at best, treatment helped him slow down his drinking. [ 34 ] He is not working currently; he has been on social assistance for over three years. [ 35 ] He has a dated record of careless storage of a firearm for which he was conditionally discharged in 2014. The more relevant conviction on his record is sexual interference from October 31, 2018 to November 27, 2018. He sexually interfered with T’s sister on those two dates.

He was convicted after trial on February 1, 2021 and sentenced to 18 months jail and two years of supervised probation on June 9, 2021. The sexual interference against T occurred in the middle of that offending behaviour, on November 22, 2018. At the time he committed this offence, he did not have a record of sexually offending. [ 36 ] The 2021 conviction is for a similar offence occurring around the same time. It can be considered in determining the character of the accused and any prospects for rehabilitation.

It disentitles GSL to leniency ( See R v JCW , 2020 MBCA 40 ). [ 37 ] He is considered a medium risk to reoffend generally, and below average risk to reoffend sexually on the Static-99R risk tool utilized by Probation Services. [ 38 ] I take notice of the fact that the offender has Métis ancestry and was adopted at birth by parents with a European background. His relationship with his parents was not happy. He developed over-eating, over-drinking, anxiety and panic disorders.

Today, he is interested in learning more about his Indigenous background and learning some of the cultural and spiritual practices. [ 39 ] He did take a Healthy Relationships program in jail serving his last sentence. He complied with all bail conditions, probation conditions and Sex Offender Information Registration Act (SOIRA) requirements. Although he has been on probation for the past two years, he apparently has not commenced counselling because he knows he will be going to jail again. [ 40 ] I take judicial notice of the fact that his adoption was akin to the “Sixties Scoop” phenomenon.

Some of the troubles he has suffered, namely serious addiction problems, and anxiety and panic attacks may well be linked to the shock of learning he was adopted, and his estrangement from Métis culture. Certainly, the information provided by the PSR and counsel demonstrate that GSL has had difficulties maintaining healthy relationships and employment.

[41] But I find that his moral culpability in committing this offence is not significantly reduced. [42] Moreover, he takes no responsibility for this offence. OTHER RELEVANT SENTENCING PRINCIPLES,

SECTION 718.2 Aggravating factors (section 718.2(a)) [43] It is statutorily aggravating that the victim was a child, (Criminal Code

section 718.2(a)(ii.1)), that he abused a position of trust,(section 718.2(a)(iii) and that the offence had a significant impact on the victim (section 718.2(a)(iii.1)). [44] The Supreme Court of Canada in Friesen offered a checklist of significant factors to be considered when sentencing childsexual abuse offences, which are generally aggravating factors. I have discussed the factors present in this case below. Likelihood to reoffend [45] 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.

Although the PSR states that the Static-99R ranked GSL as having a below average risk toreoffend sexually, the PSR writer cautioned that there may be other factors not considered by the tool that may be relevant. I point to hislong-standing addictions issues, which are currently not resolved. He was not intoxicated at the time of the offence, and was in fact in analcohol treatment program. I also note that he had a serious eating disorder prior to his alcoholism getting out of control. He observedthat he switched his addiction to food, to an addiction to alcohol.

He has not explored whether he was replacing his alcohol with sexuallyoffending against children in his family. That remains an outstanding question. [46] I have a concern that not only has he not demonstrated any remorse or insight into this offence, his only supports are similarlyof the view that he was set up and that he did not commit either this offence or the offence against T’s sister. This does not bode well forcurbing any reoffending behaviour.

As Justice Antonio stated in R v Shrivastava, 2019 ABQB 663, “[Lack of remorse] can show anoffender’s ‘continued indifference to the plight of his or her victims’, and a ‘hardened attitude towards one’s victims is moreblameworthy than a temporary lapse in judgment’.” (at para 44, citing R v Ambrose, 2000 ABCA 264 at para 80). Like the judge in thatcase, I have concerns about any prospects for rehabilitation. Abuse of a position of trust or authority [47] There was a position of trust in this case (see Friesen, paras 125 and 130). He was in the position of uncle to the child.

Asalready noted, the breach of trust of the child and her family is statutorily aggravating (Criminal Code

section 718.2(a)(iii)). Age of the victim [48] In this case, the victim was 12, which is very young, and just at the stage of entering puberty; it is a vulnerable time for youngpeople to be interfered with in a sexual manner by adults.

In Friesen, the Supreme Court stated (at para 136): At the same time, courts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent.Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls, eventhough adolescents may be an age group that is disproportionately victimized by sexual violence (Benedet, [“Sentencing for SexualOffences Against Children and Youth: Mandatory Minimums, Proportionality and Unintended Consequences” (2019), 44 Queen’s L.J.284] at pp. 302, 304 and 314; L. (D.O.), [ (SCC), [1993] 4 SCR 419] at pp. 464-65, per L’Heureux-Dubé J.).

Degree of physical interference [49] There was no penetrative sexual act involved, however, the degree of sexual oppressiveness and fear cannot be underestimatedfrom the sheer size and brutality of the offender’s actions. GSL was huge – an almost 300-pound 47-year-old man – compared to thesmall 12-year-old girl. After grabbing her breast and bum he heaved himself onto her and rubbed against her little body. He onlystopped when someone interrupted.

It is important not to “assume, as some courts appear to have done, that sexual touching withoutpenetration can be [TRANSLATION] ‘relatively benign’” (Friesen at para 144, quoting R v Caron Barrette, 2018 QCCA 516 at paras93-94). [50] The age of 12 is a time when humans must be given the space, privacy, respect and autonomy to explore their sexuality on theirown terms, and not be interfered with in any way by adults seeking their own sexual satisfaction. Mitigating Factors (section 718.2(a)) [51] This is a sentencing after trial, so the mitigating factor of a guilty plea is absent.

Nor has the offender demonstrated any insightor victim empathy or committed to a course of treatment. I fail to see any mitigating factors in this case. Parity (section 718.2(b)) [52] Subsection 718.2(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.

[ 53 ] 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. [ 54 ] The defence is seeking the identical sentence that the accused received for sexually abusing T’s sister around the same time, on the basis of parity, and as I indicated earlier, he argued that it should be treated as similarly anomalous behaviour by the accused at that particular moment in his life.

I cannot agree with the defence. First, as I indicated above, the factual landscape before Judge Killeen was not complete. He accepted that it was an out of character incident by an alcoholic who would be deterred in future because everyone around him was aware of this offence. In rejecting the Crown’s recommendation for a two year less a day sentence, Judge Killeen stated ( GSL 2021 , at page 7, lines 9 to 19): I think that to impose two years less a day would be to completely ignore what I had just said are your prospects for rehabilitation which I think are good.

The pre-sentence report, the absence of a record, the recent abstention from alcohol, all point to somebody who can do the right thing. It also strikes me that this was a type of situation that is unlikely to ever arise again. You’re not going to be with this child presumably – others will be well aware of your difficulty.

It seems to me that the likelihood of your reoffending is low and while I still have to impose a significant penalty, I think that I have to take that into account. [ 55 ] At the time he was sentenced for offending against T’s sister, the sentencing judge imposed a restrained sentence because it appeared the offender was sober, the offence appeared to be out of character and he was surrounded by people who could assist in holding him accountable. Judge Killeen was not aware that the offender was also sexually abusing that victim’s sister.

None of these factors that restrained the 18-month sentence are present here. It can no longer be said that GSL’s prospects for rehabilitation are good and that an offence of this nature is unlikely to reoccur. [ 56 ] To have sexually abused two children in the same family is highly aggravating. The first victim was profoundly affected; she developed a seizure disorder and had between 5 and 20 seizures a day, necessitating T’s father to take a leave of absence from work to be home with her. T held her own abuse secret, because the family was in such a terrible state dealing with her sister’s abuse.

This compounds the seriousness of this offence. [ 57 ] The Crown filed three cases involving single incidents where the sentences were four to six years. [ 58 ] In R v LJD , 2022 MBPC 48 , a young uncle (between 19 and 20 years old) took his 5- to 6-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. [ 59 ] 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 CFS, 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. [ 60 ] In R v RC , unreported (28 October 2021), Winnipeg, 012-95627 (Man.PC), 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 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 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. [ 61 ] The defence also filed several cases in support of his position that I should impose a sentence of 18 months.

I have already discussed Judge Killeen’s case involving this victim’s sister. [ 62 ] He also filed R v MPB , 2023 MBPC 11 , where the Crown sought two-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 daughters. The acts were similar. The offender’s risk was similar. He had not taken any counselling, but he was open to counselling and Judge Allen found that he was a good candidate for counselling.

The significantly mitigating factor in this case was that he 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. As well, he was cooperative with police and at no time disavowed his crimes” (at para 34). He was consuming “too much” marijuana at the time of the offences (at para 45). Those circumstances can be distinguished from this case. It appears that the offender had no criminal record and was extremely remorseful and a good candidate for rehabilitation.

His sentence was nonetheless 30 months in the penitentiary. [ 63 ] In R v DA , 2021 BCPC 317 , the offender was 40 years old and the half-brother of the 10-year-old child victim’s step-father. On three occasions when he was drinking, he sexually interfered with the child in a tree house in her family’s yard. He confessed his actions to the police and pleaded guilty, demonstrating considerable remorse and willingness to engage in treatment for sexual offending. The Crown sought a two-year sentence.

The judge sentenced him to 20 months. [ 64 ] In R v BAJN , 2021 MBCA 32 , the Court of Appeal substituted a sentence of two years less a day for the conditional sentence order (CSO) imposed by the sentencing judge. The 13-year-old complainant and 18-year-old accused were in an ongoing sexual

“relationship”; the complainant became pregnant and had a baby at age 14. The Court of Appeal took into account his young age, immaturity, circumstances as a Métis person, cognitive and other deficits, including an inability to appreciate his responsibility to ensure the complainant was capable of giving consent, due to her age and his dysfunctional upbringing and family life. Rehabilitation was also a relevant sentencing objective, given his young age and limited record.

The several factors reducing the moral culpability of the accused in that case, are not present in the case of GSL , nor are the facts remotely similar. The offence committed on T by GSL was a frightening and brutal assault committed on a little girl by her middle-aged uncle. [ 65 ] The case of R v Meisterhans , 2021 MBQB 80 , involved a

summary conviction appeal by the defence. The sentencing judge had imposed a sentence of 18 months on February 4, 2020, which was before Friesen was released by the Supreme Court. The Crown did not cross-appeal the sentence, therefore the

summary conviction appeal judge was confined to the 18 months originally imposed. [ 66 ] The case of R v Green , 2022 ONSC 3786 , involved a teacher touching his 14- year-old student once on her upper thigh and once on her breast, at the same time making sexually suggestive comments. The accused was convicted after trial. The teenager had very significant trauma three years after the offence, not unlike T. The judge imposed a sentence of 18 months, after comprehensively outlining the Friesen directive to increase sentences in child sexual abuse cases.

The judge relied on the Ontario Court of Appeal case of R v TJ , 2021 ONCA 392 , which determined that a fit sentence for a single incident of sexual abuse by a first time offender that did not involve any penetrative acts or violence beyond the assault was two years.

Given that the Manitoba Court of Appeal has set a higher starting point sentence for sexual interference that is akin to a major sexual assault, where the accused is in a position of trust and a mature person with no criminal record and prior good character ( see R v Sidwell , 2015 MBCA 56 , at paras 38 and 49 ), this case is not helpful. [ 67 ] The case of R v KCCF , 2021 MBQB 253 is distinguishable on its facts. The 18-year-old accused and the 15-year-old victim were on a date. The accused was sexually touching her breasts and vagina without consent and ignoring her request that she did not want to continue.

It is not remotely like the circumstances in the case before me. Justice Menzies sentenced the accused to 20 months, also taking into consideration his youth, lack of criminal record, the fact that any jail term longer than six months would have immigration consequences for him, and also that in the four years it took the matter to get to trial and sentencing, the accused had married, obtained good employment and was training to be a heavy equipment operator. [ 68 ] Finally, the defence filed R v RA , 2022 ONSC 1161 . The accused was the 11-year-old victim’s step-father.

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 four 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. [ 69 ] There is considerable disparity in the cases filed, but I do take note especially of the cases from this court, where sentences of four years, four years, six years and 30 months (15 months on each of two children, consecutive) have been imposed in the past two years for sexual interference.

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. In keeping with the clear directive from the Supreme Court in Friesen , and a full appreciation for the harm caused by child sexual abuse, the Crown is seeking a four-year sentence in this case. SENTENCE [ 70 ] The sentence must reflect the objectives of denunciation and deterrence. These facts are aggravating.

The assault on T was unprovoked, shocking and frightening. The consequences to her and to her family have been devastating, although to her credit, she has worked very hard to cope with a lot of the trauma. It is aggravating that GSL has abused both girls in the family. His previous sentence of 18 months did not reflect the fact he had also sexually abused T.

Nor did it reflect his poor chances for rehabilitation, given that as a long-time alcoholic, he has turned again to drinking, and his supports all think he is innocent of these offences, thus they are not in a position to support him to obtain counselling, or protect children who might appear in his life. [ 71 ] The sentence of 18 months is therefore no longer appropriate. It is wholly inappropriate. [ 72 ] The sentence of four years sought by the Crown reflects the enormous harm that comes from the sexual abuse of a 12-year-old by a trusted family member.

It is in parity with cases where even one incident can have dire consequences and attract a penitentiary sentence. It is also reflective of the particular physical brutality in this case: the 300-pound uncle pinning his 115- or 120-pound 12- year-old niece on a desk and then putting his body on hers and rubbing against her, grabbing her breast and bum.

It is frightening to think of how that child must have felt. [ 73 ] The offence demonstrates a high degree of moral culpability. [ 74 ] There are essentially no mitigating factors, only aggravating factors, most particularly the significant harm caused, the breach of a trusted relationship, the young and critical age of T, the brutishness of the sexual interference, the fact this occurred while she was alone with him, and in the sanctity of her family home. [ 75 ] The sentence will be four years in the penitentiary.

Ancillary Orders [ 76 ] 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 T 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) You are not to attend any public park or public swimming area where persons under the age of sixteen years are present or can reasonably be expected to be present or a daycare center, school ground, playground or community centre. • 161 (1)(a.1) You must not attend within two kilometres of T’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 involved 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. [ 77 ] Costs and surcharges are waived. Original signed by Judge Devine C.A. DEVINE, P.J.