R v. Maillet, 2023 NBPC 17

Citation: R v. Maillet , 2023 NBPC 17 Docket: 36168901 IN THE PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF MONCTON BETWEEN: HIS MAJESTY THE KING - and – MICHAEL JOSEPH MAILLET also know as MICHAEL SPURRELL MAILLET Charges pursuant to

section 271 (

a) of the Criminal Code of Canada DECISION Before: The Honourable Anne M Richard Date of Sentencing Hearings: July 5, 2023, and August 1, 2023 Date of Sentencing: September 26, 2023

Appearances: Martine Cormier for His Majesty the Queen Michel L. DesNeiges for Michael Joseph Maillet RESTRICTION ON PUBLICATION AND BAN ON IDENTITY OF VICTIMS Restriction on Publication: By Court Order, information that may identify the person/persons described in this judgment as complainant/complainants or victims may not be published, broadcast, or transmitted in any manner. See the Criminal Code , s. 486.4 and s.486.5 Orally INTRODUCTION [ 1 ] I have my decision on sentencing considering the joint recommendation by the parties. [ 2 ] I am going to deliver my reasons orally, and that will take some time.

I have cited a few cases, all of which I believe were cited by counsel. I will give the court stenographer the spellings and citations, as well as the spellings of the various names that come up in this case. [ 3 ] I will begin by identifying the discrete issue before the Court. I will then give an overview of the case and then I will set out some legal principles before I turn to my analysis of the issues related to Mr. Maillet. Finally, I will proceed with the imposition of the appropriate sentence given all the circumstances of this matter.

ISSUE [ 4 ] The question I must resolve is whether the joint recommendation of one year incarceration consecutive for each sexual assault committed by Mr. Maillet is a sentence that is in the public interest or does not bring the administration of justice in disrepute. In other words, is it compatible with the guidelines imposed by the Supreme Court of Canada in the seminal case of R v Anthony-Cook, 2016 SCC 43 . [ 5 ] As I will discuss in more details further, I conclude regrettably that the joint recommendation is not in the public interest and does in fact bring the administration of justice in disrepute.

OVERVIEW [ 6 ] I turn now to the overview. [ 7 ] On July 20, 2022, Michael Joseph Maillet also known as Michael Spurell Maillet walked into the Codiac Detachment of the RCMP in Moncton, New Brunswick and confessed to having committed several sexual assaults on 3 different victims years ago. He provided a statement to police where he admitted to having committed those historical crimes. He was sorry for what he did and wanted now to do the right thing. He cooperated with police. [ 8 ] During the subsequent months, investigators of the RCMP contacted the 3 victims who essentially confirmed by and large Mr.

Maillet’s account of the offences that he had recently confessed. Consequently, on January 11, 2023, he was charged with 3 counts of sexual assault. The charges read as follows: 1. Michael Joseph MAILLET, on or about November 15, 2004, at or near Moncton, New Brunswick, did commit a sexual assault on [A.B.] , thereby committing an indictable offence contrary to and in violation of paragraph 271 (

a) of the Criminal Code and amendments thereto. 2. And that Michael Joseph MAILLET, on or about December 12, 2005, at or near Dieppe, New Brunswick, did commit a sexual assault on [C.D.], thereby committing an indictable offence, contrary to and in violation of paragraph 271 (

a) of the Criminal Code and amendments thereto. 3. And that Michael Joseph MAILLET, on or about August 7, 1992, at or near Irishtown, New Brunswick, did commit a sexual assault on [E.F.], thereby committing an indictable offence, contrary to and in violation of paragraph 271 (

a) of the Criminal Code and amendments thereto. [ 9 ] As stated in the charging document, the Crown chose to prosecute by indictment. On May 18, 2023, Mr. Maillet elected to be tried by a judge of the Provincial Court and entered guilty pleas to all 3 counts. A pre-sentence report was ordered as were victim impact statements (« VIS ») from all three victims.

[ 10 ] On June 13, 2023, the Court received from Victim Services branch of the Department of Justice and Public Safety (« Victim Services ») a response to the request for a VIS. It stated that [ E.F ]. respectfully declined the opportunity to submit a VIS . [ 11 ] On July 4, 2023, Victim Services further advised with respect to the victim, [ C.D ].: Our office received the request for a Victim Impact Statement on May 23, 2023, an email was sent to the Crown Prosecutor’s Office, requesting the contact information for [C.D .].

On June 13, 2023, two attempts were made by telephone to contact [C.D.], however, there was no answer. Two detailed voice messages was (sic) left together with Victim Services contact information. On June 21, 2023 – A letter of invite was mailed out to [C.D.], however she did not reply. [ 12 ] For the victim [ A.B .], Victim Services also informed the court of the following on July 5, 2023: The Victim Impact Statement was explained to [A.B.] on May 29. At her request, the form was then e-mailed to her.

However, she has not returned the form, nor has she contacted our office. [ 13 ] On July 5, 2023, the sentencing hearing was held. What constituted an agreed statement of all relevant facts supporting each essential element of each charge was put on the record. Those facts are undisputed. The necessary plea inquiry was conducted as required by section 606(1.1) of the Criminal Code of Canada (the « Code ») . CIRCUMSTANCES OF THE OFFENCES [ 14 ] What follows are the uncontested facts which were confirmed by Mr. Maillet.

The circumstances of the offences to which he pled guilty is summarized below: THE VICTIM [ A.B ] [ 15 ] Mr. Maillet was in an intimate relationship with a woman named [ G ] . years ago. [ G ] . has a daughter, [ A.B .]. During the time of the relationship and when [ A.B .] was approximately 15 years old, [ G ]. went away for a weekend leaving [ A.B .] in the care of Mr. Maillet. During this time, Mr. Maillet would have given [ A.B .] alcohol and the two of them would have watched a movie in [ A.B .]. mother’s bedroom where the only DVD player in the house was located. Mr. Maillet would have passed out.

When he woke up, [ A.B .] was lying next to him. Mr. Maillet then proceeded to remove [ A.B .]’s clothing. He touched her breast and vagina and performed cunnilingus on her. He tried to penetrate [ A.B .]’s vagina with his penis.

This sexual assault would have occurred on or about November 15, 2004. [ 16 ] Following this assault, [ A.B ] would have attended the Moncton City Hospital in Moncton, NB but decided not to proceed with the collection of evidence used for a sexual assault evidence kit. [ A.B .]. did provide at that time a statement to police but there were technical difficulties with the audio rendering it inaudible. A second interview from [ A.B .] was subsequently requested by police shortly thereafter. [ A.B ] then advised that she did not wish to pursue the matter further at that time. [ 17 ] On August 10, 2022, following Mr.

Maillet confession to members of the Codiac RCMP, [ A.B ]. was contacted and interviewed again. She provided one more time a statement. She described that she recalled having drank alcohol, playing the game caps on the kitchen floor with Mr. Maillet and then watching a movie. She remembered feeling tired and falling asleep. When she woke up, her pants were pulled down and her shirt was lifted. Mr. Maillet was between her legs using his tongue on her vagina. He saw that she was awake and put his hand to cover her mouth and penetrated her vagina with his penis. At the time of this offence, Mr.

Maillet was 42 years old and [ A.B .] 15 years old. [ 18 ] Following the offence, [ A.B .].’s mother, [ G ] . , asked her not to continue with the complaint. [ A.B .] indicated to police last summer that she felt in the end that no one believed her at the relevant period. THE VICTIM [ C.D .] [ 19 ] Mr. Maillet also confessed to a sexual assault on [ C.D .] occurring on or about December 12, 2005, while [ C.D .]. was unconscious at the time in Mr. Maillet’s vehicle. He would have first touched her breast and vagina. When she awoke, [ C.D .]’s pants and underwear would have been removed and Mr.

Maillet would have been penetrating her vagina with his penis. [ C.D .] was 15 years old at the relevant time; however, Mr. Maillet believed that she was in fact a child of 13 or 14 years old. [ 20 ] At the time of this offence, Mr. Maillet was 43 years old. [ 21 ] Crown counsel relayed that in 2007, the matter was investigated following a complaint by [ C.D .]. She provided a statement to police stating that she had been raped by the accused. Mr. Maillet denied then to police any wrongdoing and therefore no charge was laid. THE VICTIM [ E.F. ] [ 22 ] Mr.

Maillet further confessed to the Codiac RCMP last summer to bringing a 17-year-old girl to a dirt road off Ammon Road, New Brunswick when he was 29 years old. He would have given her alcohol, touched her, removed her pants, and had vaginal intercourse with her. This victim was [ E.F ] and in fact 16 years old at the time. [ 23 ] [ E.F ] reported the assault to police shortly after its occurrence on August 7, 1992. She stated that Mr. Maillet had called her on the phone indicating that he had to tell her something about her boyfriend. Mr.

Maillet would have picked her up in his vehicle and driven her to a secluded rural road on the outskirts of Moncton. They would have drunk peppermint Schnapps and beer in his vehicle. She would have gotten sick and eventually lost consciousness. When she woke up, she was undressed, and Mr. Maillet was getting dressed. He then called a friend to pick her up and bring her home. [ 24 ] The matter was not pursued in 1992 when [ E.F .] advised police that she did not want to proceed further.

[ 25 ] In December 2022, [ E.F .] was interviewed again considering Mr. Maillet’s confession. She confirmed the relevant aspects of the sexual assault admitted by the accused. CIRCUMSTANCES OF THE OFFENDER [ 26 ] Mr. Maillet is 59 years old and currently single. He has been married and divorced three times and has 2 adult sons from one of those relationships. He is estranged from his children. He appears to blame his unsuccessful marriages on his former partners. [ 27 ] He has a high school diploma and one year of university computer studies.

He is currently receiving long-term disability benefits along with Canadian pension plan benefits and has been on medical leave from his employer since 2006. [ 28 ] His pre-sentence report relates a difficult and traumatic childhood. He was the victim of physical, mental and sexual abuse by unnamed family members. However, this was never disclosed to anyone. [ 29 ] He has been diagnosed with anti-social personality with alcohol use disorder and opiates use disorder. He appears to have had addiction problems and mental health issues during various times in the last few decades.

He was recently followed by a psychiatrist and was hospitalized for a month in the summer of 2022 for depression and suicidal thoughts. [ 30 ] His parents are both deceased now – his father having died by drowning when Mr. Maillet was a young teenager. He claims to be a « loner ». [ 31 ] He has a prior criminal record that is somewhat dated it is conceded. It includes a couple of provincial unrelated offences. It does nonetheless list an indictable offence for sexual interference (s. 151) in 1990 where he was sentenced to 30 days in jail. He has violent offences such as in 2007 an assault with a weapon (s. 267(

a) were he received a conditional sentence of 8 months) and later in 2009, a domestic violence assault offence where he received 18 months suspended sentence. POSITION OF THE PARTIES [ 32 ] Crown and Defense jointly recommended a year period of incarceration for each count consecutive to each along with the mandatory ancillary orders. It was emphasized by both counsel that Mr. Maillet’s confession was, in their words, a highly mitigating factor in the present instance.

That confession was the overriding justification that led them to put forward the joint submission of 1 year for each offence. [ 33 ] Crown insisted at the outset that had it not been for the accused’s confession, the crimes would never have come to light to police authorities and charges never laid. However, at the continuation of the sentencing hearing, it was conceded that nothing precluded the victims from coming forward with accusations of sexual assault against Mr.

Maillet (and for some of the victims denouncing him to the police a second time). [ 34 ] Defense put forward the argument that the crimes were committed in his estimation « when the law and public sentiment were different ». Consequently, examples of sentences imposed in New Brunswick could be as low as a few months or even suspended sentences. Caselaw illustrating these sentences were cited in defense’s brief on law. I have reviewed all of them. [ 35 ] Defense also argued that Mr. Maillet should get the benefit of the protection provided in

section 11i) of the Canadian Charter of Rights and Freedoms (the Charter ). [ 36 ] The Crown does not take issue with this aspect. It is agreed by all that there was no statutory minimum at all relevant times for these offences. Nothing precludes a sentence in theory of below the one year minimum found today in the Code if appropriate. Mr. Maillet does benefit from the lesser punishment provided at that time of each offence. This is in keeping with the pronouncements by the Supreme Court of Canada in R. v. Poulin , 2019 SCC 47 .

JOINT RECOMMENDATIONS AND THE ANTHONY-COOK FRAMEWORK [ 37 ] Consistent with my understanding of the requirements set out in by the Supreme Court of Canada in Anthony-Cook , I informed the parties of my concerns regarding the seemingly low sentence considering the tone and analysis regarding sexual offences of children in R v Friesen , 2020 SCC 9 . The Court in Friesen states at para. 5 : [W]e 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. [ 38 ] T he opportunity to make additional submissions was required.

The hearing was adjourned to a subsequent date for specific legal arguments and to provide Mr. Maillet the option to withdraw his guilty plea. He chose in the end to maintain his guilty plea. I was satisfied that he was informed of the impact of same and that it was unequivocal and voluntary as the law requires. He is represented by experienced senior counsel.

[ 39 ] As already mentioned, the question before me is whether the joint position of one year consecutive for each count is compatible with the requirements set out by the Supreme Court of Canada in Anthony-Cook . This case dictates the proper test as being the public interest criterion.

At paragraph 32 of the decision, Justice Moldaver articulates for the Court what that test means: Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. [ 40 ] I am mindful that the framework imposed in Anthony-Cook which mandate a " public interest " test for joint submissions is more stringent than the habitual " fitness test " habitually used during most sentencing hearings.

Again, as stated in that case: […] a joint submission will bring the administration of justice into disrepute or be contrary to the public interest if , despite the public interest considerations that support imposing it, it is so “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system” . And, as stated by the same court in R. v.

B.O.2 , 2010 NLCA 19 , at para. 56 , when assessing a joint submission, trial judges should “avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts”. In my view, these powerful statements capture the essence of the public interest test developed by the Martin Committee. They emphasize that a joint submission should not be rejected lightly, a conclusion with which I agree.

Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold – and for good reason […] [Emphasis added, paras. 33-34] [ 41 ] In a joint submission, both parties have been given the opportunity to assess the strengths and weaknesses of their respective positions.

They agree to a resolution that they consider fair and consistent presumably with the public interest. [ 42 ] Our Court of Appeal has reminded trial judges of the Anthony-Cook methodology when departing for joint recommendations in Beck v R ., 2021 NBCA 33 and recently in Robertson v. R ., 2023 NBCA 76 . This latter case involves drug offences where the accused tried to reverse a joint recommendation where one of the arguments, she advanced was that she had ineffective defense counsel. THE CONFESSION [ 43 ] The Crown highlighted two recent cases in support of the importance of Mr. Maillet’s confession.

In R v R.W ., 2021 NUCJ 29 , the accused was a 23-year-old Inuk man with no prior criminal record. He plead guilty to one (1) count of sexual interference of a 14-year- old girl. The act was one of sexual intercourse. Shortly after committing the offence, R.W. left the victim’s residence and flagged down a passing RCMP officer and admitted to having done something wrong and confessed to having « raped a girl ». He fully cooperated with police throughout.

The Court cited mitigating factors at the sentencing hearing in the form of Gladue considerations, psychiatric reports with detailed mental illness diagnosis as evidence. There was also proof of self-harm, and that R.W. was bullied in school to the point of at least one suicide attempt. The Court concluded that 15 months imprisonment followed by 12 months’ probation to be an appropriate sentence. It factored in the absence of a criminal record, the offender’s youth and troubled past and potential for rehabilitation given R.W .’s unequivocal manifestation of remorse.

An attentive study of this case reveals that the confession appeared to have impacted the facilitating of the police investigation of the offence as opposed to hindering one. [ 44 ] In R v Gunaratnam , 2021 ONSC 8270 also referred to by the Crown, the accused plead guilty to certain offences of inappropriate sexual touching of children. While serious offences, the gravity was unlike the offences committed by Mr. Maillet of the violation of physical and sexual integrity of the victims. I note as well again that Mr.

Gunaratnam had no criminal record but had initially denied his involvement in his pre-sentence report. He later had a change of heart and admitted to the historical offences. The Court accepted with some reluctance a joint recommendation of a conditional sentence order for 2 years less a day along with a 3-year supervised probation term. Judge Schreck appears to put a great deal of importance on the public interest being best served by resolving charges outstanding in two provinces.

There was some indication that one matter was taken an emotional toll on one of the victims. [ 45 ] The confession in both those cases is to be read in their proper context, therefore. [ 46 ] In my inquiry regarding the surrounding circumstances leading to the joint position before me, it was reiterated the singular aspect of the presence of a confession. However, there is no evidence of a quid pro quo, compromise or concession which served to fuse, as they say, the shared position of the parties . There is no evidence or even mention of any frailties in the Crown case.

The facts do not set out that the Crown's case might suffer from flaws, such as an unwilling witness, a witness of dubious worth, or evidence that is potentially inadmissible – problems that can lead to an acquittal. ( see paragraph 39 in Anthony-Cook ). If anything, it appears to be the reverse from the record even given the passage of time. The 3 victims – now adult women in their 30’s and 40’s – where recently interviewed by police to confirm Mr. Maillet’s version of each crime. The inference that had it not been for Mr.

Maillet’s confession the offences would never have come to light is speculation in my view. It is worth repeating that Mr. Maillet deliberately at that time denied his involvement directly to police in at least one occurrence during an active investigation. [ 47 ] This is not a scenario of a non-compellable witness or a vulnerable and inarticulate complainant such as a toddler or an accused having second thoughts. In Beck for example, the accused pled guilty to assaulting a 14-month-old toddler. Mr. Beck was the boyfriend of the child’s daycare provider.

The bulk of the Crown’s evidence rested on the accused – otherwise the identification of the perpetrator was problematic. The Crown case was therefore tenuous . [ 48 ] To properly analyze the joint recommendation that it does not bring the administration of justice in disrepute, I must also determine if in applying current sentencing case law instead of jurisprudence from the time of the offence contravenes the parity principle. This is essentially my understanding of the argument put forth by defense.

[ 49 ] Recently, Chief Justice Bauman of the Court of Appeal for British Columbia in R v R.O . 2023 BCCA 65 ruled on this point in the context of historical sexual assaults. While this case does not put in play the Anthony-Cook principles per se , it is instructive regarding historical crimes, sentencing and the perception of holding the administration of justice in the best regard in the post- Friesen era. [53] The judge did not err in the parity analysis by applying current sentencing law on sexual offences against children.

The cases cited by R.O. from the 1970s and 1980s are of no assistance to him as they do not reflect the range of sentences that accord with society’s understanding today of the gravity of the offences he committed. [ 54] I note that, by their very nature, cases of historical sexual offences against children often involve an adult coming forward about abuse they suffered as a child that was not disclosed at the time of the offences.

This is likely due, in part, to the moral, social and legal landscape at the time, which silenced or failed to support survivors of sexual violence in a way that our society is striving to change today. [55] It would be contrary to justice and to “society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children and the far-reaching and on-going harm that it causes” to use the moral, social, and legal standards at the time of the offence uninformed by these considerations at the time of sentencing. OLDER PRECEDENTS [ 50 ] The New Brunswick Court of Appeal in R.P. v.

R ., 2013 NBCA 12 has recognized this idea that jurisprudence in this area of the law (here R v Sobey) may have limited precedential value over time when society views and comprehension evolve. In light of the emphasis Sobey placed on denunciation and deterrence in the context of sexual offences against children, it would be a clear misstatement of its precedential value to suggest that judges should feel bound by specific sentencing ranges when there may be compelling reasons to deviate from them in the modern context.

Put simply, Sobey was decided 15 years ago and, while it was a guide for the time, it is not a guide for all time. [paragraph 19] [ 51 ] Appellate courts have followed muc h of the guidance in Friesen and extended its reach to historical sexual offences against children (see again R.O ., supra, Fruitier c R , 2022 QCCA 1225 at paras 32-40 , R c X , 2022 QCCA 266 at paras 144-18 ). Similarly, in Dedam v.

R ., 2022 NBCA 41 , the New Brunswick Court of Appeal, citing the principles set out in Friesen , upheld a sentence of nine years for sexual assaults against children committed over a lengthy period (paras. 101-104 and 114). [ 52 ] Therefore, based on all the submissions by both counsel and the evidence and uncontested facts before this Court, I conclude that the proposed sentence would run contrary to public interest and would bring the administration of justice in disrepute. I am not rejecting this joint recommendation lightly and not on basis of its fitness.

I believe that a reasonably informed public would lose confidence in the Courts if such a recommendation is followed given the circumstances of this case even in the face of a confession. I am rejecting it in application of the pronouncements in Anthony-Cook , on the one hand and those related to offences of a sexual nature committed on children in Friesen and R.O. on the other. SENTENCING PRINCIPLES - FRIESEN [ 53 ] Again, one must rely on Friesen which marked a watershed decision on the sentencing principles for sexual offences against children.

The reasons for judgment were delivered by Chief Justice Wagner and Justice Rowe. In Friesen , the Court embarked upon an in-depth examination of these principles. It highlights and updates our contemporary knowledge of sexual violence against children by focusing on its prevalence and the protection of the sexual and bodily integrity of minors. This is done to dispel past biases and myths surrounding such offences so that they do not, in the Court’s words, filter into the sentencing process. [par. 50]. [ 54 ] Finally,

section 718.2 sets out additional principles, including considering the aggravating and mitigating factors related to the context of this accused. Deemed aggravating circumstances by Parliament are evidence the offender abused a person under 18, and that the offender abused a position of trust or authority over the victim. [ 55 ] Given the evidence before me, I determine that the aggravating factors in the present case are: • Mr. Maillet was in a position of trust over one victim [ A.B .] akin to a stepparent relationship at the relevant time • Mr.

Maillet’s previous criminal record including violent offences and one of sexual interference ( see R. v. Sinclair , 2022 MBCA 65 ) • Evidence of pre-planning in the case of [ C.D ] by luring her to a rural secluded road. • The degree of physical interference and violation of each victim’s bodily integrity including risk of pregnancy and sexually transmitted diseases

• The age of all 3 victims at the time of the offences who were under 18 years old. • The vulnerability of [A.B], [C.D]. and [E.F] who were given alcohol to the point of intoxication. [56] As it relates to the last two aggravating factors, Defense submits that an important consideration is that the offences pre-date the2008 Code amendments raising the age of consent from 14 to 16 years old. At the relevant time, the victims were above 14. I disregardthis argument given that there is no evidence whatsoever of capacity to consent.

Furthermore, there is mention by Defense that at leastone victim willingly consumed alcohol. While this is not clearly born by the agreed facts put on the record, again I place no credence onthis argument and caution the purported inference based on myths and stereotypes that just because a person is «drunk» it means that heor she is willing to have sexual intercourse. [57] Finally, it is important to underline that the absence of a victim impact statements does not permit an inference that the victimssuffered no harm (see R v May, 2011 ONCA 74 at para 9.). [58] The mitigating factors are as follows: • Mr.

Maillet by his own volition came forward and confessed to police of his crimes thus facilitating charges to be laid. I doconsider this factor to be an important mitigating element • The accused entered a guilty plea to each of the 3 offences avoiding a potentially lengthy trial and additional traumatization of thevictims • His health • He has expressed some remorse for his actions [59] With respect to Mr. Maillet’s health, there is mention in his pre-sentence report of past addiction issues and mental health diagnosisbut nothing more. He is receiving some disability benefits from his employer.

There is no other evidence regarding his personalcircumstances. While this is a mitigating factor generally, it does not diminish Mr. Maillet’s level of moral blameworthiness (see R vPond, 2020 NBCA 54). THE PASSAGE OF TIME [60] Time lapse between the commission of the offences and sentencing may be a factor the Court may consider but one must be carefulnot to place undue weight on it. [61] As was recounted by Justice Ryan from our Court of Appeal in R. v.

E.S., in adopting the analysis in theseminal case of R v Spence, 1992 ABCA 352: The details of the crime are important circumstances to be taken into account in determining the correct penalty which fits the crimeand the individual. In a crime of violence against a child, the fact that no threat is made is not a mitigating factor; neither is thereany in a criminal act that has lain hidden in darkness from the light of discovery for many years. The criminal act, once perpetrated,does not ameliorate with age. [62] See also more recently R v S.H., 2014 ONCA 323.

CONCURRENT VS CONSECUTIVE [63] The issue of whether to impose concurrent or consecutive sentences when dealing with multiple offences must be determined withthe totality principle in mind. This is legislative by virtue of s. 718.2(

c) of the Code. This question arises when an accused is beingsentenced on more than one count on either the same indictment or multiple indictments for offences committed at different times. However, Parliament has dictated in cases of multiple sexual assault offences against children that sentences must be servedconsecutively. This is set out in

section s. 718.3(7) of the Code. [64] I am guided by the jump principle sometimes called the step principle, which contemplates a progression in the length of sentencesimposed in the event of recidivism for the similar offence. I reiterate that Mr. Maillet’s criminal record sets out an indictable offence in1990 of sexual interference contrary to

section 151 of the Code. SENTENCE ON EACH COUNT [65] Mr. Maillet is to be sentenced for three separate offences. The required analytical framework has been articulated by our Court ofAppeal in Brown v. R., 2022 NBCA 33 («Brown»). This framework is described at paragraph 23: A framework for the principled application of the totality principle was addressed by this Court in R. v. Peterson, 2017 NBCA 29,[2017] N.B.J. No. 152 (QL), per Quigg J.A., which adopted the guidelines set out in R. v. Hutchings, 2012 NLCA 2, [2012] N.J. No.12 (QL), per Green C.J.N.L., as he then was.

These guidelines (Hutchings, at para. 84) may be summarized as follows: 1. identify a sentence for each offence, applying proper sentencing principles. 2. consider whether any of the individual sentences should be made consecutive or concurrent, on the ground that they constitute asingle criminal adventure; 3. if this results in two or more sentences being served consecutively, take one “last look” at the combined sentence to determinewhether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibilityof the offender, having regard to the following factors:

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved;

b) the number and gravity of the offences involved;

c) the offender’s criminal record;

d) the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing, and

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender’s degree of responsibility; 4. if the combined sentence is not unduly long or harsh and is proportionate to the gravity of the offences and the offender’s degree of responsibility, the sentence must stand; 5. where the combined sentence is unduly long or harsh, determine the extent to which the combined sentence should be reduced to achieve a proper totality by, first, attempting to adjust one or more of the sentences by making it or them concurrent with other sentences , but if that does not achieve the proper result, in addition, or instead, reduce the length of an individual sentence below what it would otherwise have been; and 6. in imposing individual sentences adjusted for totality, the judge should be careful to identify:

a) the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, without considerations of totality;

b) the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and

c) the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are to be made concurrent or to be otherwise reduced. [ 66 ] Given these and all the circumstances of this case including Mr. Maillet’s confession that did facilitate the present charges, I conclude the following in keeping with the Friesen principles: • For the offence of sexual assault on [ A.B .] . contrary to

section 271 the sentence will be 4 years. • For the sexual assault on [ C.D ], the sentence will be of 3 years. • For the sexual assault on [ E.F ], the sentence will be of 2 years. [ 67 ] Had it not been for the confession, the global sentence would have been 9 years. [ 68 ] Despite the cumulative sentence amounting to 9 years, I must ensure that the total sentence remains proportionate. A sentence must never exceed the culpability of the accused. As a result, I find that a total sentence of 6.5 years would appropriately reflect all principles of sentencing including proportionality and totality.

Accordingly, I will adjust the sentence as follows: • For the offence of sexual assault on [ A.B .] contrary to

section 271 the sentence will be 2.5 years consecutive. • For the sexual assault on [ C.D ], the sentence will be of 2 years consecutive. • For the sexual assault on [ E.F .], the sentence will be of 2 years consecutive. [ 69 ] Mr. Maillet has been remanded pending sentence since August 1, 2023, being 56 days. I therefore grant 84 days remand credit at the rate of 1.5 to be deducted from his sentence. In addition, to the 6.5-year period of incarceration, the following ancillary orders are granted: ▪ An order pursuant to s.743.21(1) prohibiting Mr.

Maillet from communicating, directly or indirectly, with all three victims during the custodial period of the sentence. ▪ DNA order (Primary Designated Offence

section 487.051) ▪ SOIRA order for twenty years pursuant to

section 490.013(2)(b) ▪ Firearms prohibition order for 10 years pursuant to s.109(1)(a)

_____________________________________ Anne M Richard Judge of the Provincial Court of New Brunswick