R v R.C.M., 2024 SKCA 6

Restriction onPublication An order has been made in accordance with s. 486.4(1) of the Criminal Code directingthat any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3684 Citation: R v R.C.M., 2024SKCA 6Date: 2024-01-17Between:R.C.M.Appellant AndHis Majesty the KingRespondent Before: Jackson, Kalmakoff and McCreary JJ.A. Disposition: Appeals dismissed Written reasons by: The Honourable Mr.

Justice KalmakoffIn concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice McCrearyOn appeal from: CRM-BF-00032-2021 (Sask KB), BattlefordAppeal heard: November 27, 2023Counsel: Ronald Piché for the Appellant Kelly Kaip for the Respondent Kalmakoff J.A. I. Introduction [1] After a judge-alone trial, R.C.M. was convicted of sexual assault and sexual interference (R v R.M. (11 January 2023)Battleford, CRM-BF-00032-2021 (Sask KB) at para 30 [Trial Decision]).

The trial judge stayed proceedings on the charge of sexualassault in accordance with R v Kienapple, (SCC), [1975] 1 SCR 729, and sentenced R.C.M. to a term of imprisonment of4.5 years for the charge of sexual interference, along with various ancillary orders (R v R.M. (29 March 2023) Battleford, CRM-BF-00032-2021 (Sask KB) [Sentencing Decision]). [2] R.C.M. appeals against both his conviction and sentence. For the reasons that follow, I would dismiss the conviction appealand, although I would grant leave to appeal against the sentence, I would dismiss that appeal as well. II. Background A.

The people involved [3] When the relevant events in this case occurred, R.C.M. was 18 years old. The complainant, K.C., was 13 years old. K.C.’s aunt,C.D., was R.C.M.’s girlfriend. At that time, K.C. was living with her grandparents, her uncle, and C.D. B. The evidence at trial [4] At the trial, K.C. testified that, on the evening in question, there had been a gathering of family and friends at the residencewhere she was living. Most of the people present that night were adults. They had a bonfire in the backyard and were drinking andsocializing.

K.C. said that, late in the evening, as people were leaving, she was sitting outside by herself near the fire. She testified thatR.C.M. came over to where she was, sat down beside her, and began touching her inner thigh. Shortly after that, he grabbed her by the handand led her to a trailer that was parked in the yard.

K.C. said that, once they were inside the trailer, R.C.M. pushed her onto a bed, removedher shoes, pants, and underwear, and forced vaginal intercourse upon her while she pleaded with him to stop and tried to push him away.K.C. testified that the incident came to an end when R.C.M. heard something outside the trailer, got up, and let her get dressed. [5] K.C. also testified that she told some of her relatives, including C.D., about this incident a few days later.

She said that she andC.D. then confronted R.C.M., and that he did not deny that sexual contact had occurred between him and K.C. but claimed that she had beenthe one who initiated it. K.C. also stated that, during this conversation, R.C.M. told her that he would kill himself if she reported theincident to the police. [6] C.D. also gave evidence. She confirmed that there had been a gathering at her residence, as K.C. had described. She also saidthat she and K.C. had met with R.C.M. a few days later.

C.D. was not asked directly about whether there had been any discussion of theincident between K.C. and R.C.M. at this meeting, or whether R.C.M. had made the admission that K.C. had described. However, sheacknowledged during cross-examination that she had previously given a statement to the police in which she had said that R.C.M. “wasurging K.C. to tell the truth about what happened”.

[ 7 ] The only defence evidence at trial came from Andrew Toews, a deputy sheriff who had been in the courtroom during K.C.’s testimony. Mr.

Toews testified that he had observed a woman in the gallery doing things that he interpreted as attempts to signal to K.C. as to how she should answer certain questions. [ 8 ] In his closing argument, R.C.M.’s counsel submitted that K.C.’s evidence was neither credible nor reliable, because a key aspect that could have been corroborated – namely, the portion where she said R.C.M. had made an inculpatory statement in the presence of C.D. – was not, and other aspects were inconsistent with what she had said on previous occasions.

He also argued that the trial judge should view K.C.’s evidence in an unfavourable light because she had been combative and dismissive during cross-examination. In addition, R.C.M.’s counsel suggested that Mr. Toews’ testimony concerning the actions of the woman in the gallery was also something that the trial judge should find negatively affected the credibility and reliability of K.C.’s evidence. C. The Trial Decision [ 9 ] The trial judge rejected R.C.M.’s arguments.

He accepted K.C.’s evidence, stating that he found her “to be credible and reliable in her testimony as related to the important issues surrounding the sexual assault” ( Trial Decision at para 30), and that when he considered all of the evidence “regardless of the specific defence concerns”, he was satisfied that “the Crown [had] proven their case beyond a reasonable doubt” (at para 31). Accordingly, he found R.C.M. guilty. D.

The sentencing submissions [ 10 ] At the sentencing hearing, the Crown argued that R.C.M. should receive a term of imprisonment of five years, and that ancillary orders including a 10-year firearms prohibition, a requirement to provide a DNA sample for forensic analysis, that he have no contact with K.C. or her family members while serving his sentence, and that he be subject to the provisions of the Sex Offender Information Registration Act , SC 2004, c 10 for a period of 20 years, should also be made. [ 11 ] In making these submissions, Crown counsel acknowledged R.C.M.’s young age and his positive family support but argued that, although those facts were indicative of his rehabilitative potential, they were not necessarily mitigating factors.

The Crown also acknowledged R.C.M.’s Indigeneity but submitted that his family history and personal circumstances did not reduce his moral culpability in any meaningful way. Crown counsel contended that there were several aggravating aspects, including that R.C.M. had a conviction as a youth for assault causing bodily harm. The Crown also pointed out that the statutory aggravating factor in s. 718.2 (a)(ii.1) of the Criminal Code was present, given that K.C. was under the age of 18, and submitted that because she was “barely a teenager” when the offence occurred, this feature was “highly aggravating”.

Crown counsel argued that there were other aggravating circumstances, including that R.C.M. was in a position of trust or authority vis-à-vis K.C. within the meaning of s. 718.2 (a)(iii), and that she had been significantly and negatively affected by the offence.

Finally, the Crown observed that ss. 718.01 and 718.04 of the Criminal Code required the trial judge to give primary consideration to the sentencing objectives of denunciation and deterrence, because the offence “involved the abuse of a person under the age of eighteen years”, who was also “vulnerable because of personal circumstances” that included being female and Indigenous. [ 12 ] R.C.M.’s counsel argued that an appropriate sentence would fall somewhere around the three year mark.

In making this submission, he focused on R.C.M.’s young age, positive family support, and the fact that he had no prior history of sexual offending. Although counsel conceded that R.C.M. was “not alleging Gladue factors in the traditional sense, in terms of having witnessed abusive behaviour in the home; that kind of thing”, he contended that the trial judge was still required to properly factor R.C.M.’s Indigeneity into the sentencing analysis.

He also drew the trial judge’s attention to the fact that R.C.M. had been on stringent release conditions for nearly three years prior to trial and argued that this pre-sentence restriction of his liberty should be taken into account in fixing the appropriate sentence. E. The Sentencing Decision [ 13 ] The trial judge began the Sentencing Decision by referring to the relevant provisions of

Part XXIII of the Criminal Code . He reproduced the text of s. 718, which sets out the fundamental purpose of sentencing and the objectives a court must balance in order to achieve it. He also referred specifically to s. 718.01 and its directive that sentencing judges “give primary consideration to the objectives of denunciation and deterrence” for offences involving the abuse of children.

He also mentioned the fundamental principle of proportionality in s. 718.1, and the secondary sentencing considerations set out in s. 718.2 . [ 14 ] After he had done that, the trial judge referred to R v Friesen , 2020 SCC 9 , [2020] 1 SCR 424 [ Friesen ], citing it as authority for the proposition that “a fit sentence in these circumstances must be greater than what would be imposed where the victim is an adult” (at para 8).

He also referred to this Court’s decision in R v L.V. , 2016 SKCA 74 , [2017] 1 WWR 439 [ L.V. ], which contains the admonition that “assaults against a child should normally warrant a stronger sanction” than those committed against adults (at para 101), and stated that, in his view “[t]he Friesen decision suggests a sentence range of four to six years should be normal … for sexual offences against children” ( Sentencing Decision at para 10). [ 15 ] The trial judge noted that R.C.M. is Indigenous on his mother’s side.

He set out what the pre-sentence report had said about R.C.M.’s formative years, including that he had grown up in a peaceful family, had not experienced any familial violence, had not been the victim of any abuse, had no issues with alcoholism or drug abuse, and that he himself had become a father at age 17. The trial judge also observed that R.C.M. had not completed high school but had been gainfully employed since the age of 18, and that he had fully complied with the terms of his release order.

The trial judge stated that he agreed with the suggestion made by R.C.M.’s counsel that, although R.C.M. “did not have any Gladue factors in the traditional sense … systemic factors involving his Indigenous personage [exist] nevertheless” (at para 14).

The trial judge also noted R.C.M.’s record as a youth and the fact that the pre-sentence report had assessed him as presenting a “moderate risk to re-offend”. [ 16 ] The trial judge referred to the significant impacts of the offence on K.C., including that she “suffers from depression and has attempted suicide since the incident”, and that her “academic performance has deteriorated” (at para 15).

[17] The trial judge then turned his mind to whether there were any mitigating factors at work in the case. In that regard, citing R vOkemaysim, 2021 SKCA 33 [Okemaysim], he pointedly rejected R.C.M.’s argument that the terms of his interim release order, which hadincluded a requirement for electronic monitoring, should be seen as a mitigating factor (at para 16). [18] In the concluding paragraphs of the Sentencing Decision, the trial judge addressed other sentencing considerations, includingparity, and described how he balanced the relevant objectives in determining the sentence to be imposed.

In that regard, he said: [17] Insofar as specific sentences handed down by this Court in similar circumstances, since Friesen we have Okemaysim whichprovided for a period of incarceration of 40 months, appealed by the defence and upheld by the Court. We have the C.C.D. [R v C.C.D.,2022 SKKB 253] decision in which a sentence of five years was imposed. There is also the decision from the Ontario Court of Appeal in Rv Solomon, 2022 ONCA 706, where a sentence of five years was upheld on appeal by the defence. The C.C.D. decision is most similar inthe circumstances surrounding the offence.

The victim in that case was 12 years old at the time of the offence and a single incident ofsexual assault was perpetrated upon her by her mother’s boyfriend. [18] It is clear that the imposition of a lengthy penitentiary sentence is going to significantly impact the ability for rehabilitation of[R.C.M.]. I did not ignore this consideration.

The Supreme Court of Canada and Parliament have made it clear that denunciation anddeterrence are more significant factors when sentencing offenders for assaults against young girls. [R.C.M.], I determine a fit sentence foryou to be 4½ years which I find to be the equivalent of 1,642 days. You have spent six days in pre-trial custody at a credit rate of 1.5.

Thatprovides you with nine days of credit to be applied against your sentence. [R.C.M.], I therefore sentence you on the charge under s. 151 ofthe Criminal Code to a period of incarceration of 1,633 days. [19] The trial judge also made the ancillary orders that the Crown had requested and ordered R.C.M. to pay a victim impactsurcharge of $200. III. The conviction appeal A.

The grounds of appeal [20] Although R.C.M.’s notice of appeal set out five grounds of appeal in relation to the conviction, his factum and oral submissionsadvanced only two lines of argument. [21] The first is that the trial judge erred in law by not applying the requisite level of scrutiny to K.C.’s evidence, effectively loweringthe standard of proof.

The second is that his conviction was the product of a miscarriage of justice, because the trial judge failed to properlyaddress the trial fairness concerns that arose from the evidence about the woman in the gallery who had allegedly attempted to influenceK.C.’s testimony. [22] As I will discuss, I see no merit in either of these arguments. B.

The alleged error in the assessment of K.C.’s evidence [23] Under the first branch of his argument, R.C.M. asserts that, because of K.C.’s young age (she was 13 when the relevant eventsoccurred, and 15 when she testified at trial), the trial judge misapplied the law by “disregard[ing] the obvious shortcomings” and the“equivocal, inconclusive, or plain contradictory” nature of her testimony.

R.C.M. concedes that the trial judge correctly stated the legalprinciples that guide the assessment of the evidence of child witnesses, by recognizing that decisions such as R v B.(G.), (SCC), [1990] 2 SCR 30; R v W.(R.), (SCC), [1992] 2 SCR 122; and R v Solivio, 2022 SKCA 117 at para 22, [2022] 12WWR 594 [Solivio], instruct trial judges in such cases to employ a common-sense approach that has proper regard for all the strengths andweaknesses of the evidence.

However, he asserts that the trial judge failed to apply those principles, because he effectively treated thatinstruction as though it permits a lowering of the standard of proof where the Crown’s case relies on the evidence of a child witness. [24] In making this argument, R.C.M. points to what he contends were significant inconsistencies between K.C.’s testimony at trialand what she had said on previous occasions, including her statement to the police and her testimony at the preliminary inquiry, about suchmatters as how much she had to drink on the night in question, what footwear she had on, how long the incident took, and whether she hadbeen sitting or lying down when R.C.M. removed her clothes.

He asserts that these inconsistencies were material and demonstrated that herevidence was unreliable, and that the trial judge glossed over them simply because K.C. is a child. Moreover, R.C.M. says, the trial judgefailed to properly consider the uncooperative and combative way K.C. answered defence counsel’s questions in cross-examination, and howthat should have affected the weight afforded to her evidence. [25] I am not persuaded by this line of R.C.M.’s argument.

Determinations respecting the credibility and reliability of witnesses, arefindings of fact and, therefore, are generally subject to a deferential standard of appellate review (R v R.P., 2012 SCC 22 at para 10, [2012]1 SCR 746; R v W.H., 2013 SCC 22 at paras 33–34, [2013] 2 SCR 180). Because decisions concerning the weight to assign to a witness’sevidence, and the effect of any inconsistencies or flaws in it, are fundamentally the province of the trier of fact, an appellate court cannotinterfere with a trial judge’s assessment of credibility unless it is established that: (

i) the trial judge made a legal error in their assessment ofthe evidence (such as basing the assessment on irrelevant or inappropriate considerations, or on a wrong legal principle); or (ii) theirassessment of credibility and reliability cannot be supported on any reasonable view of the evidence (R v J.M.H., 2011 SCC 45 at para 36,[2011] 3 SCR 197; R v Burke, (SCC), [1996] 1 SCR 474 at para 7; R.P. at para 10; R v Gagnon, 2006 SCC 17 at para 20,[2006] 1 SCR 621; R v R.D.A., 2015 SKCA 100 at para 6, 465 Sask R 313, leave to appeal to SCC refused ; R v Boyer,2018 SKCA 6 at paras 56–58, [2018] 6 WWR 322; R v Adebogun, 2021 SKCA 136 at para 22, [2022] 1 WWR 187; R v Potoreyko, 2022SKCA 70 at para 17; R v Englot, 2022 SKCA 129 at para 5; R v Thompson, 2023 SKCA 66 at para 24, 426 CCC (3d) 524). [26] As I have mentioned, R.C.M. acknowledges that the trial judge correctly articulated the legal principles that apply to theassessment of witness credibility and reliability, but he contends that the trial judge erred in law by not actually applying those principleswhen he assessed K.C.’s testimony.

I cannot accept this assertion because the record clearly demonstrates otherwise.

[ 27 ] In the Trial Decision , the trial judge began by referring to Solivio as a self-instruction with respect to the law governing the assessment of evidence provided by child witnesses. He explicitly referred to the “common-sense approach” mandated by cases like B.(G.) and W.(R . ), and the need to “not impose the same exacting standard on them as it does on adults” (at para 4).

However, he also recognized that, regardless of the age of a witness, a careful assessment of their evidence is still called for, and he specifically noted the portion of B. (G.) that says the standard of proof cannot be lowered where the case turns on the testimony of a child witness. [ 28 ] After doing that, and contrary to what R.C.M. asserts, the trial judge reviewed and considered K.C.’s testimony thoroughly and carefully, and in a manner that is consistent with a proper application of the governing legal principles.

In that respect, he explicitly acknowledged and considered each of the inconsistences that R.C.M.’s counsel had argued should be seen as reducing the weight to be given to her evidence. He also directly addressed the evidence regarding the actions of the woman in the gallery during K.C.’s testimony, and the argument that K.C.’s evidence was somehow less worthy of credit because of her “combative” demeanour towards defence counsel.

The trial judge considered each of these arguments and explained, in a thorough and comprehensible fashion, how he resolved those alleged problems. [ 29 ] Let me provide some examples to illustrate this. [ 30 ] With respect to the evidence concerning the actions of the woman in the gallery, the trial judge thoroughly reviewed the testimony given by Mr.

Toews, and found that, in the circumstances it provided “no benefit to the Court in evaluating the testimony of anyone or coming to a conclusion with respect to the case” (at para 18). [ 31 ] As for R.C.M.’s suggestion that K.C. had been inconsistent in her account of how much she had to drink, or that her “combative” demeanour should detract from the weight given to her testimony, the trial judge said this: [20] In testimony in-chief, [K.C.] recalled having two alcoholic drinks, although she seemed uncertain. When questioned about alcohol consumption in cross-examination she stated she did not remember.

It was clear from her testimony that her relationship with [R.C.M.]’s lawyer, Mr. Piché, was combative. Mr. Piché challenged her in questions and in tone. She clearly did not like this. In my experience most adult witnesses are somewhat deferential to counsel when being questioned. This was not the case with [K.C.]. Contrary to assertions by defence counsel, I did not take her answers throughout to indicate a vindictiveness towards [R.C.M.] as compared to antagonism towards Mr. Piché.

There were instances where she stated in cross-examination “I don’t remember” which I did not believe as she had already testified in-chief as to that occurrence. That does not mean her testimony about crucial aspects of the alleged sexual assault are invalid.

It simply is part of a mix that I must consider when determining whether the Crown has proven their case beyond a reasonable doubt. [ 32 ] The trial judge rejected R.C.M.’s argument that K.C.’s failure to immediately cry for help should weigh against her credibility, because he found it to be nothing more than an invitation to the Court to give weight to a rape myth. In that regard, he said: [22] …The defence is simply wrong.

To expect a 13-year-old to cry out for help when being sexually assaulted by an older person who also lives in the same residence and is dating her aunt would put the onus back on [K.C.] to act like older male judges so often wanted them to. We have moved past that time. [ 33 ] The trial judge also dealt head-on with the alleged inconsistencies in K.C.’s account of her footwear, and whether she had been lying down or sitting when certain things occurred, saying: [23] [K.C.] testified at different times that she was wearing short rubber boots or shoes and that [R.C.M.] removed them.

Defence states that this is an important issue because it would be more difficult to remove boots than shoes and as such, the complainant should remember which it was. Once again defence misses the point when trying to assess child witnesses that the relative level of importance of clothing can pale in comparison to the act of sexual assault. The clothing worn is not the issue. It is the actions of [R.C.M.] that would be of considerably more concern in the overall scenario. … [24] Defence puts great emphasis on this point.

If she was sitting then it would be harder to get her clothes off and harder to have sexual intercourse. I did not get from the testimony at the preliminary inquiry that was put to [K.C.] that she was sitting during sexual intercourse as opposed to when the initial assault was taking place in the trailer. That she was sitting while her clothes were taken off and lying down after is entirely possible.

Again, the effort at particularizing the exact circumstances surrounding the major issue, which is sexual intercourse, is a point to be considered but not to dominate. [ 34 ] The trial judge also found no inconsistences in K.C.’s descriptions of how the assault ended or whether she was hitting and scratching R.C.M. as it occurred. He dealt with the issue R.C.M. had raised about K.C.’s testimony regarding his admission that there had been sexual contact, and its alleged inconsistency with C.D.’s testimony on that point.

In that respect, the trial judge observed that nobody had directly asked C.D. about whether R.C.M. had made such an admission and found that, while this lack of direct questioning of C.D. was “of concern”, it did not affect his overall assessment of the credibility and reliability of K.C.’s testimony (at para 27). [ 35 ] The trial judge also addressed R.C.M.’s suggestion that K.C.’s evidence about whether she had seen his penis or whether he had worn a condom was inconsistent, and determined that there had been no inconsistency in that respect, saying: [28] [K.C.] says that [R.C.M.] never put on a condom that she could see.

She says that he did not take the time to do it nor did she see him do anything of that nature in his movements. She also said she never saw his penis. That evidence is not inconsistent. She certainly believed he did not put on a condom based on all the circumstances of the interaction in the trailer. She is not fabricating that evidence. Given her description she is both credible and reliable in this regard. [ 36 ] Finally, the trial judge found that K.C.’s demeanour and general manner of testifying did not detract from her credibility.

Although he observed that “a combative relationship between [defence counsel] and [K.C.] arose during the questioning”, he also noted that, after K.C. had been given an adjournment to compose herself, she answered all questions put to her in cross-examination, and “[h]er testimony was strong, and her description of the incident at trial was unwavering” (at para 29).

[ 37 ] The trial judge summed up his analysis of K.C.’s evidence by saying: [30] [K.C.] was challenged significantly by [R.C.M.]‘s counsel on her allegations of fact. She held up to the challenge. I found her to be credible and reliable in her testimony as related to the important issues surrounding the sexual assault. I found her use of the statement “I don’t recall” to be a response to Mr. Piché’s approach and not an attempt to deceive the Court.

I do not find that it impinged on her reliability overall, but it did affect her credibility in those specific circumstances, none of which I find impacted on my final conclusion to accept her evidence. [31] The onus is on the Crown to prove guilt beyond a reasonable doubt. In the face of these specific circumstances that have been raised by defence I find that the Crown has still proven their case.

When I look at the overall evidence, regardless of the specific defence concerns, I find that the Crown has proven their case beyond a reasonable doubt. [ 38 ] In my view, all of this illustrates that the trial judge not only correctly self-instructed with respect to the approach to be taken when assessing K.C.’s evidence, and the evidence as a whole, but also that he followed that instruction. He considered K.C.’s evidence in its totality and in the context of all the other evidence.

He dealt with the allegedly problematic areas of her testimony, and he explained how he resolved those concerns while bearing in mind the requisite standard of proof. The mere fact that the trial judge did not draw the conclusions about the evidence that R.C.M. thought he should have, or even that another trier of fact might have done so, does not mean that the trial judge made a legal error in assessing K.C.’s testimony. This line of argument must fail. C.

The alleged failure to address trial fairness concerns related to the actions of a person in the gallery [ 39 ] The second branch of R.C.M.’s argument on the conviction appeal is that the trial judge erred in his treatment of the evidence relating to the woman in the gallery who had allegedly tried to communicate to K.C., while she was testifying, about how certain questions should be answered. [ 40 ] The evidence relevant to this issue came from two sources. First, during cross-examination, R.C.M.’s counsel asked K.C. if she knew that a certain person, J.C., had been in the courtroom during her testimony.

K.C. acknowledged that J.C. had been in the gallery, and that J.C. was a member of her family. She also agreed that she had looked at J.C. at certain points while testifying, however, she firmly denied ever having seen J.C. nod, shake her head, or otherwise attempt to communicate with her. [ 41 ] The second source of evidence was Mr. Toews, who testified as a defence witness.

He said that, while K.C. was testifying, he had been sitting beside the prisoner’s box, facing across the courtroom, and that when defence counsel asked K.C. “are you afraid of the accused?”, he had observed a woman who was sitting in body of the courtroom looking at K.C. and “shaking her head yes … as if she was trying to get the witness to answer yes to the question. And the witness answered no”. Mr. Toews also testified that he did not know who the woman was, and that he had noticed her making other gestures during K.C.’s testimony.

In cross-examination, he acknowledged that, although K.C. appeared to be looking in the direction of the woman, he could not tell precisely what she was looking at and that, apart from the one specific question and answer upon which he had commented, he was unable to compare any answers K.C. gave with any other gestures he saw. He also agreed that it was possible that the woman had just been “thinking to herself”, rather than trying to signal anything to K.C. [ 42 ] During his closing argument, R.C.M.’s counsel raised this issue and suggested that Mr.

Toews’ evidence should be given significant weight because it showed that K.C., who had already established herself as a hostile witness, had communicated with a person in the body of the courtroom about how she should answer questions. The trial judge took a different view of the matter. He indicated that he had difficulty seeing the value in Mr.

Toews’ evidence, given its lack of specificity about the identity of the woman in the gallery, the lack of evidence about whether she was aligned with K.C., or R.C.M., or neither of them, and, most importantly, the lack of a basis to conclude that her actions had had any effect on K.C.’s testimony. After reviewing and summarizing Mr.

Toews’ testimony, the trial judge summed up his assessment of it by saying: “[t]he circumstances of his evidence provide no benefit to the Court in evaluating the testimony of anyone or coming to a conclusion with respect to the case” ( Trial Decision at para 18). [ 43 ] R.C.M. argues on appeal that the evidence concerning the actions of the woman in the gallery gave rise to “clear and overarching concerns regarding trial fairness” that the trial judge had not properly addressed and, because of that, his conviction was the product of a miscarriage of justice.

As I will explain, I reject this argument. [ 44 ] Section 686(1)(a)(iii) of the Criminal Code permits this Court to allow an appeal from conviction where it is of the opinion that “on any ground there was a miscarriage of justice.” Miscarriage of justice comprehends a range of situations. However, at its core, the question of whether a miscarriage has occurred “asks whether the trial was unfair, or alternatively whether an appearance of unfairness was created” ( R v Khan , 2001 SCC 86 at para 73 , [2001] 3 SCR 823 [ Khan ]).

An appellant who raises miscarriage of justice as a ground of appeal does not necessarily need to demonstrate legal error on the part of the trial judge in order to succeed; a miscarriage of justice can result from any irregularity or combination of irregularities that is severe enough to render the trial unfair or create the appearance of unfairness ( R v Theodore , 2020 SKCA 131 at para 80 , 399 CCC (3d) 125 [ Theodore ], citing R v Davey , 2012 SCC 75 at paras 50–51 , [2012] 3 SCR 828 [ Davey ]; and Khan at para 69 ).

The test for miscarriage of justice under s. 686(1)(a)(iii) is objective in nature and requires that an appeal court examine whether a well-informed, reasonable person, considering the whole of the circumstances would have perceived the trial as unfair or appearing to be so ( Theodore at para 81 ; R v Rogal , 2018 SKCA 18 at para 49 , 410 CRR (2d) 248). [ 45 ] Where an accused person alleges a miscarriage of justice, they bear the burden of demonstrating their entitlement to a new trial on that basis ( R v Moosomin , 2008 SKCA 168 at paras 15 and 27 , 239 CCC (3d) 326; Theodore at para 80 ). [ 46 ] In assessing whether a conviction is the product of a miscarriage of justice, it is important for an appellate court to bear in mind that an accused person is only entitled to a fair trial, not a perfect one, and that it is inevitable that minor irregularities will occur from time to time ( Khan at para 73 ).

Minor irregularities do not clear the miscarriage of justice bar. In order to establish a miscarriage of justice on the basis of an irregularity, an appellant must show that the gravity of the irregularity was enough to “create such a serious appearance of unfairness it would shake the public confidence in the administration of justice” from the perspective of a reasonable and objective person, having regard for the circumstances of the trial ( R v Kahsai , 2023 SCC 20 at para 67 [ Kahsai ]). This is a demanding test. If, as in this case,

a claim of miscarriage of justice is based on perceived unfairness, and not actual prejudice, the test is even more stringent. Where perceived unfairness of a trial is at issue, “the appearance of unfairness must be pronounced, such that it would be a serious interference with the administration of justice and offend the community’s sense of fair play and decency” ( Kahsai at para 68 , citing Davey at para 74 ).

To put it another way, “the appearance of unfairness must be serious enough to taint the administration of justice” ( Kahsai at para 69 ). [ 47 ] In support of this branch of his argument, R.C.M. relies on the decisions in R v Mehl , 2021 BCCA 264 [ Mehl ], and R v A.S. , 2022 SKQB 60 [ A.S. ].

As I see it, neither of those decisions assist R.C.M., because the facts that were determinative in those cases bear no resemblance to those of this case. [ 48 ] In Mehl , the British Columbia Court of Appeal allowed an appeal and overturned a conviction for first degree murder on miscarriage of justice grounds, based on evidence about the conduct of a juror that gave rise to a reasonable apprehension that the juror was biased.

The juror’s behaviour involved a lengthy and significant pattern of behaviour that included making hand gestures, smiling, winking, and otherwise communicating expressions of sympathy to family members of the victim who were seated in the courtroom during the trial.

The Court of Appeal concluded that the nature of the juror’s conduct, including “its frequency, when it emerged in the course of the trial and what it would likely have conveyed to a dispassionate and informed observer” was “sufficient to satisfy the high burden required to rebut the presumption of impartiality”, leading “to the conclusion that the appearance of trial fairness was undermined by the juror’s conduct”, and that a miscarriage of justice had been established (at paras 479–482). [ 49 ] In my view, the parallels that R.C.M. tries to draw between his case and the circumstances that led to the finding that there had been a miscarriage of justice in Mehl simply cannot be drawn.

The appearance of unfairness that the Court found in Mehl did not arise from a person in the body of the courtroom attempting to communicate with a witness but, rather, from the fact that the person attempting to communicate with others in the courtroom was a juror . The distinction is important because, in the latter scenario, the offending conduct can give rise to a reasonable apprehension that the trier of fact was biased.

That is not the situation in R.C.M.’s case. [ 50 ] In A.S. , a mistrial was declared in circumstances where the evidence showed that persons who were obviously supporters of a child witness in a sexual assault case were heard to be verbally communicating with the witness while she was giving remote testimony from a soft room.

The trial judge determined that it was necessary to declare a mistrial because she could not rule out the possibility that there had been “direct or indirect influence on the complainant’s testimony”, which potentially impacted the fairness of the trial and created “a reasonable possibility of prejudice to the accused” (at paras 29 and 39). [ 51 ] While the circumstances of A.S. were more similar to R.C.M.’s case than those in Mehl , they also differed in a very significant way.

In A.S. , the supporters of the child witness had been located outside the soft room, and although the trial judge was unable to ascertain precisely what they had said, she found as a fact that the witness had been able to hear their voices while testifying. Accordingly, she determined that granting a mistrial was necessary to preserve the fairness of the trial process. [ 52 ] In R.C.M.’s case, the woman who had allegedly attempted to communicate with K.C. had done so from the body of the courtroom, and there was no direct evidence that K.C. had seen anything she had done.

As noted earlier, K.C. denied having seen J.C. gesture or attempt to communicate, and Mr. Toews could not say if the woman he believed had been trying to communicate with K.C. had succeeded. Given this evidence, it was open to the trial judge to conclude, as he did, that K.C.’s testimony had not been influenced in any way by that woman’s actions.

Given this finding of fact, there was no grounding for any suggestion that trial fairness, or even the appearance of trial fairness, had been adversely affected. [ 53 ] Additionally, in circumstances more similar to those at hand, courts have found that trial fairness was not compromised, either in fact or in appearance, simply because a member of the gallery had behaved suspiciously while a witness was testifying. [ 54 ] In R v Paxton , 2012 ABQB 96 , affirmed 2016 ABCA 361 [ Paxton ], the accused sought a stay of proceedings on a number of different bases, one of which was an allegation that the trial had been rendered unfair because a police officer involved in the case had coached and directed the in-court testimony of a key Crown witness by signalling or gesturing to the witness during cross-examination.

As part of the stay application, persons who had been seated in the gallery at the pertinent time testified that they had seen the officer making certain distinctive movements. A courtroom surveillance camera video was also tendered as evidence. It showed the officer nodding his head when certain questions were asked and making other exaggerated movements of his hands and head.

The officer testified that he had not been trying to signal anything to the witness but, rather, that his nods and gestures were a natural response to the evidence he was observing. [ 55 ] The trial judge dismissed the application, as she concluded that trial fairness had not been compromised by the officer’s actions. In large measure, this was because she accepted the officer’s testimony, but also because there was “simply no evidence of manipulation and no evidence of a conscious and deliberate plan” to affect the witness’s testimony (at para 107).

She went on to say: [112] While I accept the evidence of what people saw, I have reached my own conclusions as to what was happening and the meaning to be attributed to [the officer]’s acknowledged movements. In conclusion, while the distinctive movements of [the officer] were sufficient to draw the attention and even concern of some who saw them, I accept [the officer]’s explanation and find that there was no attempt to communicate with or suggest answers to a witness.

The claimant has not met the burden of establishing attempted or actual communication with the witness. [113] The Defence acknowledged that if communication was found, such would be a factor when weighing [the witness]’s testimony. They also argue it may be considered as part of the constellation of circumstances they argue in support a judicial stay. There is however, no evidence that [the witness]’s testimony was in any way affected by [the officer]. … [ 56 ] Similarly, in R v Nikal , 1999 BCCA 362 , 125 BCAC 161 [ Nikal ], the appellant had been convicted at trial of a number of sexual offences.

On appeal, he sought to adduce fresh evidence in support of a ground of appeal alleging a miscarriage of justice. The fresh evidence related to an allegation that Crown witnesses had been coached during the trial through signals from a person seated in the gallery. The British Columbia Court of Appeal unanimously dismissed the fresh evidence application and the appeal, as it determined that the appellant had failed to meet the burden of establishing that a miscarriage of justice had occurred. In reaching that conclusion, Braidwood J.A., writing for two of the three judges on the panel, emphasized two points.

First, he noted that the testimony of the allegedly coached witnesses had involved a full narrative, and not simply “yes or no” answers, which made it “difficult to see how coaching from the audience

could possibly occur given the unfolding of the narrative” (at para 35). Second, he found that no substantial difference had been identified between the accounts the witnesses provided in their statements to the police, which had been given in the absence of the person accused of coaching from the gallery, and their testimony in court.

In other words, there was no evidence that suggested that any alleged signalling from the audience had any impact on the witness’s testimony. [ 57 ] While neither Paxton nor Nikal is a perfect factual analogue to R.C.M.’s case, they support the proposition that the mere fact that a person situated in the body of the courtroom has done something that may be perceived as an attempt to influence the testimony of a witness does not, without more, render a trial unfair, either in fact or appearance. [ 58 ] In this case, the trial judge made clear findings that the alleged attempted influence had no effect on K.C.’s evidence, and that the evidence relating to the attempt provided no other benefit to the Court in evaluating the evidence as a whole.

I see no basis in the record to interfere with these findings and, in light of them, I cannot conclude that R.C.M. has established that a miscarriage of justice occurred. D. Conclusion [ 59 ] For the foregoing reasons, I would dismiss R.C.M.’s conviction appeal. IV. The sentence appeal A. The grounds of appeal [ 60 ] R.C.M. raises two grounds in relation to his sentence appeal. First, he contends that the trial judge erred in principle by failing to properly consider his youth and rehabilitative prospects as mitigating factors. Second, he says the sentence is demonstrably unfit.

As I will discuss, I am not persuaded that either of these grounds provide a basis for this Court to interfere with the sentence imposed by the trial judge. B. Standard of review [ 61 ] The standard of review that governs sentence appeals is deferential in nature.

It permits an appellate court to intervene only if the sentencing judge made an error in principle that had an impact on the sentence or if the sentence is demonstrably unfit ( Friesen at para 26 , citing R v Lacasse , 2015 SCC 64 , [2015] 3 SCR 1089 [ Lacasse ]): see also R v Suter , 2018 SCC 34 at para 24 , [2018] 2 SCR 496). [ 62 ] Errors in principle that may justify appellate intervention include errors of law, the failure to consider a relevant factor, or the erroneous consideration of aggravating or mitigating factors.

An appellate court cannot intervene just because it would have weighed the relevant objectives, principles, or factors differently than the sentencing judge.

The weighing and balancing of factors can form an error in principle only if, by emphasizing one factor or by not giving enough weight to another, the sentencing judge exercises their discretion unreasonably ( Friesen at para 26 ; Lacasse at paras 51–52 ; R v Jimmy , 2023 SKCA 28 at para 11 ). [ 63 ] If there is no error in principle, of if an error in principle had no impact on the sentence, an appellate court may not intervene unless the sentence is demonstrably unfit ( Friesen at para 26 ; R v Tinker , 2023 SKCA 54 at para 19 ; R v Johnson , 2021 SKCA 17 at para 22 [ Johnson ]). C. Analysis 1.

The alleged errors in principle [ 64 ] R.C.M. asserts that the trial judge erred in principle by focusing on the fact that the victim of the offence was under the age of 16 and, by so doing, effectively precluding himself from properly considering the mitigating effect of R.C.M.’s youth and rehabilitative prospects.

While R.C.M. agrees that the trial judge explicitly acknowledged his youth and gave a nod to the objective of rehabilitation, he contends that the trial judge failed to give either of these considerations any meaningful place in the sentencing analysis. [ 65 ] Sentencing is an inherently individualized process.

Each sentence must be “custom tailored to match the particular offence, as well as the offender” ( R v Hills , 2023 SCC 2 at para 62 [ Hills ]). [ 66 ] The objectives that a sentencing judge must balance in order to achieve the fundamental purposes of sentencing – protection of the public and the maintenance of a just, peaceful and safe society – are set out in s. 718 of the Criminal Code .

Those objectives include denunciation, deterrence, separating the offender from society where necessary, rehabilitating the offender, making reparations, promoting a sense of responsibility in the offender, and acknowledging the harm that the offence has caused. In most cases, a sentencing judge has broad discretion with respect to how the relevant sentencing objectives are balanced.

However, Parliament has mandated that, in certain cases, denunciation and deterrence are to be given primary emphasis, including those where the offence involved the abuse of a person under the age of 18 years ( s. 718.01 ) or the abuse of a person who is vulnerable because of their personal circumstances ( s. 718.04 ). [ 67 ] No matter how a sentencing judge chooses to balance the relevant sentencing objectives, the sentence must comply with the fundamental principle of proportionality set out in s. 718.1.

Proportionality is the “central tenet” of our sentencing regime in Canada and requires judges to ensure that the punishment an offender receives is proportionate to the gravity of the offence and the offender’s moral blameworthiness ( Hills at para 57 ; Lacasse at paras 45–51 ; R v Safarzadeh-Markhali , 2016 SCC 14 at paras 70–71 , [2016] 1 SCR 180).

To fulfill this requirement, a fit and proportionate sentence must be “crafted based on the particular facts of the case and in light of the existing legislation and case law” ( R v Bertrand Marchand , 2023 SCC 26 at para 27 [ Bertrand Marchand ], citing R v Nasogaluak , 2010 SCC 6 at para 43 , [2010] 1 SCR 206). The particular facts of the case include not only the circumstances of the offence, but also the personal circumstances and background of the offender.

[ 68 ]

Section 718.2 requires a sentencing judge to have regard for other sentencing considerations, including the need to increase or reduce the sentence to account for any aggravating or mitigating factors, and principles such as parity, restraint, and the requirement to give special consideration of the circumstances of Indigenous offenders. [ 69 ] R.C.M. alleges that the trial judge failed to properly account for his youth and rehabilitative prospects as mitigating factors in the sentencing process.

Clearly, a sentencing judge must consider any mitigating factors that arise on the facts of the case before them when determining a fit sentence, and it is trite to say that certain aspects of an offender’s background and personal circumstances may properly be seen as reducing their moral culpability ( Bertrand Marchand at paras 72–73 ; Friesen at paras 91–92 ; Hills at para 58 ).

In that regard, an offender’s youth is often viewed as a mitigating factor in sentencing because youthful offenders are generally less morally culpable than more seasoned offenders and, where a youthful offender has positive prospects for rehabilitation, it may be appropriate to attach greater weight to that sentencing objective, and less to objectives such as denunciation and deterrence (see, for example: Lacasse at para 79 ; Friesen at para 174 ; Bertrand Marchand at para 132 ; and R v Kollie , 2021 ABCA 389 at paras 13–14 [ Kollie ]).

However, the extent to which an offender’s youthfulness will be seen as mitigating “is not a constant and depends on the circumstances of the offence and the offender” ( Kollie at para 13 , citing R v Evans , 2019 ONCA 715 at para 303 , 377 CCC (3d) 231). [ 70 ] Cutting directly to the bottom line, I am not persuaded that the trial judge erred in his consideration of the mitigating effects of R.C.M.’s youth or rehabilitative prospects. It is fair to say that the trial judge did not specifically mention them in the

section of the Sentencing Decision that was headed “Mitigating Factors”.

That said, when the trial judge’s reasons are read as a whole, and in light of the evidence and the submissions of counsel, I am satisfied that he took R.C.M.’s youth and rehabilitative prospects into account in determining a fit sentence and that, while he recognized their potential mitigating effect, he assigned them little weight because of the gravity of the offence, the governing provisions of the Criminal Code , and the direction provided by the relevant jurisprudence. [ 71 ] R.C.M. did not testify at trial, and, at the time of sentencing, there was little information before the trial judge pertaining to his personal circumstances, apart from what was contained in the pre-sentence report and the submissions of counsel.

In that respect, the submissions made by R.C.M.’s counsel were not extensive. He advised the trial judge that R.C.M. had no prior sexual offending history and that he was “barely 18 years of age” at the time of the offence and argued that those were “the most persuasive aspects of the sentencing”. R.C.M.’s counsel also submitted that “the age of the accused and the lack of a record … bring[s] this to the three-year penitentiary range”, and pointed out that, had the offence occurred only a few months earlier, before R.C.M. turned 18, he would have been sentenced as a youth.

In short, other than the bare mention of R.C.M.’s age, counsel’s submissions said little of how R.C.M.’s youth might have affected his blameworthiness. And, although counsel asserted that R.C.M. had “excellent rehabilitation prospects down the road”, no details were provided about what those prospects were. [ 72 ] The pre-sentence report also shed little, if any, light on how R.C.M.’s age affected his moral culpability or his rehabilitative prospects.

It noted that he had grown up in a positive family environment, that he had no issues with alcohol or drug abuse, and that he was willing to comply with programming if ordered to do so. It also mentioned that R.C.M. did not feel that any programming was necessary because he denied having committed the offence. [ 73 ] In his sentencing submissions at trial, Crown counsel acknowledged R.C.M.’s youth, but said that it was not automatically a mitigating factor. The Crown took the view that, at most, R.C.M.’s youth was “indicative of rehabilitative potential.

Because being young gives offenders a greater opportunity and a timeframe to changes, as opposed to an older offender”. Crown counsel also asserted that R.C.M.’s denial of having committed the offence meant that rehabilitation was a sentencing objective of lesser relevance, and stated that “[N]either youthfulness nor family support necessarily lower R.C.M.’s moral culpability”. [ 74 ] In the Sentencing Decision , the trial judge expressly recognized that he was required to “look at the individual circumstances of [R.C.M.] and the specific factors found in s. 718.2 ” to craft an appropriate sentence (at para 12).

He acknowledged R.C.M.’s young age (albeit incorrectly, by stating that R.C.M. was 19 at the time of the offence, rather than 18). He also mentioned the generally positive nature of the pre-sentence report, and the fact that R.C.M. had been assessed as presenting a moderate risk to re-offend. As I have already stated, the trial judge did not further discuss R.C.M.’s youth or rehabilitative prospects under the heading “Mitigating factors” in paragraph 16 of the Sentencing Decision.

However, I am not persuaded that this means he disregarded those considerations entirely because, two paragraphs later, he said this: [18] It is clear that the imposition of a lengthy penitentiary sentence is going to significantly impact the ability for rehabilitation of [R.C.M.]. I did not ignore this consideration.

The Supreme Court of Canada and Parliament have made it clear that denunciation and deterrence are more significant factors when sentencing offenders for assaults against young girls. … (Emphasis added) [ 75 ] Furthermore, I would note that youth and the potential rehabilitation prospects derived from that status were the only real mitigating factors present in this case, as R.C.M.’s counsel acknowledged.

In such circumstances, the trial judge can hardly be said to have ignored them. [ 76 ] There is no disputing the fact that the trial judge’s analysis in this respect was brief but, even so, his reasons convince me that he turned his mind to the submissions concerning the mitigating effect of R.C.M.’s age and rehabilitative prospects and concluded that those factors were entitled to less weight because the relevant provisions of the Criminal Code and the governing jurisprudence required him to give primary attention to denunciation and deterrence.

The attribution of weight to relevant sentencing objectives always involves an exercise in judicial discretion, and where the governing legislation or jurisprudence dictates that denunciation and deterrence are the primary sentencing objectives, a sentencing judge will be justified in attaching less weight to mitigating factors, including those arising from the personal circumstances of the offender (see, generally: Lacasse at paras 78–82 ). [ 77 ] I can see no basis to interfere with the way the trial judge chose to weigh the relevant factors.

For sexual offences committed against children, the law now dictates that the focus in sentencing is to be on denunciation and deterrence. The trial judge clearly recognized this. He acknowledged that the circumstances of this case brought s. 718.01 and s. 718.04 of the Criminal Code into play.

He also explicitly recognized the direction provided in Friesen , where the Supreme Court emphasized that “sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities”, and that sentences imposed for such offences “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” (at para 5). [ 78 ] Importantly, in the context of this branch of R.C.M.’s argument, the Court in Friesen also underscored the fact that sentencing judges must “take the modern recognition of the wrongfulness and harmfulness of sexual violence against children into account when determining the offender’s degree of responsibility” and “must not discount offenders’ degree of responsibility by relying on stereotypes that minimize the harmfulness or wrongfulness of sexual violence against children” (at para 87).

Sexual offences against children involve conduct that is inherently “highly morally blameworthy because children are so vulnerable” (at para 90). [ 79 ] In that respect, Friesen reflects a “paradigm shift” that has resulted from the changes to the Criminal Code that were enacted as part of the Tougher Penalties for Child Predators Act , SC 2015, c 23, and which focus sentencing judges on the wrongfulness and harmfulness of sexual violence against children, the damage done by offences of that nature to the direct victim and to families, communities and society, and the disproportionate impact that such offences have on girls, Indigenous persons, and others who are vulnerable (see: R v L.A. , 2023 SKCA 136 at paras 31–35 [ L.A. ]). [ 80 ] To be clear, this does not mean that sentencing judges should disregard relevant factors that may serve to reduce an offender’s moral culpability, even in cases involving sexual offences committed against children ( Friesen at para 91 ; Bertrand Marchand at para 171 ; L.A. at para 39 ).

However, where ss. 718.01 and 718.04 apply, as they do here, denunciation and deterrence must be given primary consideration as sentencing objectives and, as a result, factors personal to the offender assume a reduced role ( Friesen at paras 104–105 ; R v Nystrom , 2023 BCCA 232 at para 50 ; R v KNDW , 2020 MBCA 52 at para 21 ). [ 81 ] In the end, although the trial judge was well aware of R.C.M.’s youth and rehabilitative prospects, he was equally aware that the offence R.C.M. had committed was one that involved an inherently high degree of moral blameworthiness and that, in fixing the sentence, he was required to focus on the harm caused to the victim and the community, and to impose a sentence that gave primary effect to the objectives of denunciation and deterrence.

I see nothing in the trial judge’s approach that permits intervention on the basis that he committed an error in principle. 2. The alleged demonstrable unfitness [ 82 ] R.C.M.’s second line of argument is that the sentence is demonstrably unfit. [ 83 ] A sentence may be demonstrably unfit even if a judge has made no error in principle in imposing it. However, the threshold for appellate intervention based on demonstrable unfitness is high.

To reach that threshold, the sentence must be clearly or manifestly excessive or inadequate, or one that represents a substantial and marked departure from what would be a proportionate sentence ( Lacasse at paras 52– 53 ; Jimmy at para 12 ; R v Chukwu , 2016 SKCA 6 at para 18 , 472 Sask R 241; R v Kamara , 2020 SKCA 76 at para 58 ).

An appellate court cannot find a sentence to be demonstrably unfit just because it would have arrived at a different number than the sentencing judge did ( Johnson at para 23 ; R v L.T.N. , 2021 SKCA 73 at para 46 ). [ 84 ] R.C.M. submits that the sentence is demonstrably unfit because he was sentenced as though he was in a position of trust or authority vis-à-vis K.C.

In that regard, R.C.M. concedes that the trial judge did not state that he was relying on the statutory aggravating factor in s. 718.2 (a)(iii) (abusing a position of trust or authority in relation to the victim) in determining the appropriate sentence.

However, he asserts that the fact the trial judge referred to cases in which the offenders were found to have occupied a position of trust vis-à-vis the complainants as relevant comparators means that the trial judge misapplied the parity principle, by basing his sentence on the sentences of other offenders whose offences involved significant aggravating features that his did not. [ 85 ] It is fair to observe that the trial judge referred to only three cases as relevant comparators, namely Okemaysim, R v C.C.D. , 2022 SKKB 253 [ C.C.D. ] , and R v Solomon , 2022 ONCA 706 [ Solomon ].

It may also be noted that each of those cases involved certain aggravating features that were not present in R.C.M.’s case. [ 86 ] In Okemaysim , the offender was 19 when he sexually assaulted the 13-year-old complainant. The complainant, who did not know Mr. Okemaysim before the night of the offence, became extremely intoxicated at a gathering with friends. Mr. Okemaysim offered to look after her, then forced sexual intercourse on her while she was incapacitated by alcohol. The trial judge sentenced Mr. Okemaysim to a term of imprisonment of 40 months. Mr.

Okemaysim appealed his sentence, contending that it was demonstrably unfit. This Court dismissed his appeal, noting that, in light of the complainant’s young age, the “position of trust” that resulted from Mr.

Okemaysim undertaking to look after her in her intoxicated state, the fact that he had sexual intercourse with her while she was incapacitated by alcohol, and the direction from Friesen and L.V. in relation to sentencing for sexual assaults committed against children, the sentence was not demonstrably unfit. [ 87 ] In C.C.D. , the offender was an adult who was found guilty of sexually assaulting the 12-year-old daughter of his long-time girlfriend on one occasion.

The trial judge in that case found it to be an aggravating factor that C.C.D. “held a position of trust within [the] family which he seriously abused”, making his conduct “especially morally blameworthy” ( C.C.D. at para 56 ), and imposed a sentence of five years. [ 88 ] In Solomon , the offender was the leader of a church group. The complainant was the daughter of a member of the church. Mr. Solomon began offending against the complainant when she was 15. They had a sexual relationship that lasted six years, during which time the complainant had three children with Mr.

Solomon, the first of which she became pregnant with at age 16. Mr. Solomon was convicted of sexual exploitation, sexual assault, and uttering threats. He was sentenced to a term of imprisonment of five years. The Ontario Court of Appeal dismissed his appeal from sentence. [ 89 ] While the factual differences between each of these cases and R.C.M.’s case are apparent, I do not find the trial judge’s reference to them, or the way in which he used them in his analysis, to have resulted in a demonstrably unfit sentence.

Let me explain why that is so. [ 90 ] As a first point, it appears to me that R.C.M. is trying to make an argument that his sentence is demonstrably unfit not on the basis that it is “clearly or manifestly excessive or inadequate, or one that represents a substantial and marked departure from what would be a proportionate sentence” but on the basis of additional arguments grounded in what would be usually considered errors in principle, i.e., a failure to respect the principle of parity and an error of law by finding a relationship of trust when one does not exist. In my view, this is not

the proper way to argue demonstrable unfitness. [91] When it is alleged on appeal that a sentence is demonstrably unfit, the primary focus of the inquiry must be on the principle ofproportionality (Lacasse at para 53). This does not mean that other principles are irrelevant, because the determination of a fit sentencealways requires a judge to have regard for the sentencing objectives set out in s. 718, and to appropriately apply the principles enumeratedin s. 718.2 (Lacasse at para 54; R v Pankewich, 2002 SKCA 7 at paras 39-43).

But, in assessing whether a sentence is demonstrably unfit, itmust be remembered that the principles in s. 718.2 are “secondary to the fundamental principle of proportionality” (Lacasse at para 54). [92] It is correct to say that parity is “an expression of proportionality”, and that “judges calibrate the demands of proportionality byreference to the sentences imposed in other cases” (Friesen at paras 32–33).

A sentence may be demonstrably unfit where it represents asubstantial and marked departure from sentences customarily imposed for similar offenders who commit similar crimes (Lacasse at para 52;R v Wolfe, 2022 SKCA 132 at para 25). In other words, an unreasonable departure from the proper application of the parity principle canlead to a demonstrably unfit sentence.

However, sentencing is not a matching exercise, and a sentence will not be rendered demonstrablyunfit just because a similarly situated offender in another case received a different sentence, or because another offender whose offence mayhave involved different aggravating features received a lesser sentence.

As noted in Lacasse: [52] …Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offencecommitted by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances.Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2(

a) and (

b) of the Criminal Code. [93] While I agree that demonstrable unfitness may be the result where a judge crafts a sentence by basing it on the sentence imposedin a clearly dissimilar case, I am not persuaded that the trial judge did that here. [94] The trial judge began the Sentencing Decision by observing that Friesen had “reformatted” the approach to sentencing in casesinvolving sexual assaults committed against children by, among other things, making it clear that “a fit sentence in these circumstancesmust be greater than what would be imposed where the victim is an adult” (at para 8).

As I have already discussed, this reflects a properunderstanding of the impact of Friesen on the sentencing regime, as it accords precisely with what Wagner C.J. and Rowe J. stated in thefollowing paragraphs: [107] We are determined to ensure that sentences for sexual offences against children correspond to Parliament’s legislative initiatives andthe contemporary understanding of the profound harm that sexual violence against children causes. To do so, we wish to provide guidanceto courts on three specific points:

(1) Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence;

(2) Sexual offences against children should generally be punished more severely than sexual offences against adults; and,

(3) Sexual interference with a child should not be treated as less serious than sexual assault of a child. … [109] This guidance from Lacasse applies to sexual offences against children. As noted previously, Parliament’s decision in 2015 toincrease maximum sentences for sexual offences against children should shift the range of proportionate sentences as a response to therecognition of the gravity of these offences. Sentences should increase as a result of this legislative initiative (Rayo, at para. 175).

In certaincases, a sentencing judge [translation] “must feel free to impose sentences above” a past threshold (R. v. Régnier, 2018 QCCA 306, atpara. 78 ). As the Quebec Court of Appeal has reasoned, courts must give “the legislative intent its full effect” and should not feelbound to adhere to a range that no longer reflects Parliament’s view of the gravity of the offence (para. 40).

Such a range may in fact be“obsolete and must be revised upwards” (para. 30). [95] The trial judge also quite properly looked to post-Friesen sentencing jurisprudence for guidance as to a fit sentence for R.C.M.By quoting portions of C.C.D., he incorporated the Supreme Court’s admonition that sentences imposed prior to Friesen should be treatedwith caution, and also its clear message that “mid-single digit penitentiary terms for sexual offences against children are normal and thatupper-single digit and double-digit penitentiary terms should neither be unusual nor reserved for rare or exceptional circumstances” (at para114).

As I read the Sentencing Decision, the trial judge correctly recognized this as a direction that the sentences for sexual offencescommitted against children should generally increase from what they had been in the past, and that they should also generally be harsherthan the sentences imposed in cases where the offence was committed against an adult.

The nature of the guidance provided in this regardby Friesen was thoroughly but succinctly summarised by Jackson J.A. in L.A., where she wrote: [37] In Friesen, the Supreme Court declined to “create a national starting point or sentencing range for sexual offences against children”,noting that “[t]he appropriate length and the setting of sentencing ranges or starting points are best left to provincial appellate courts” (atpara 106). However, it did provide specific guidance on increasing sentences in an actionable manner: (

a) where appropriate, “increase sentences imposed for these offences” and from prior precedents and sentencing ranges (at para 100); (b) “[s]exual offences against children should generally be punished more severely than sexual offences against adults” (at para 107); … (

e) when analyzing the gravity of the offence, sentencing judges must always “take into account forms of potential harm that have yet tomaterialize at the time of sentencing but that are a reasonably foreseeable consequence of the offence and may in fact materialize later inchildhood or in adulthood” (at para 84); (

f) where, however, “direct evidence of the actual harm to the child is unavailable, courts should use the harm to the child as a lens throughwhich to analyze the significance of many particular aggravating factors” (at para 86); (g) “[c]ourts must also take the modern recognition of the wrongfulness and harmfulness of sexual violence against children into account

when determining the offender’s degree of responsibility” (at para 87); (h) “mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances” (at para 114); … [ 96 ] A fair and contextual reading of the Sentencing Decision reveals that the trial judge recognized and applied the foregoing principles, and not that he tied the sentence to be imposed against R.C.M. to those meted out by the courts in Okemaysim , C.C.D. , or Solomon .

Notably, he did not explicitly describe any of those cases as setting a starting point or a range, nor did he say that the circumstances in any of those cases were the same as R.C.M.’s. He simply listed those decisions as illustrations of the types of sentences that had been imposed post- Friesen for sexual assaults committed against children.

He also fairly observed that no particular range had been fixed by this Court for sexual offences involving child victims. [ 97 ] The trial judge’s reference to Friesen shows that he was focused on the aggravating and mitigating factors present in R.C.M.’s case and a determination of how they played into a fit sentence.

In that regard, I would observe that, over and above the young age of the victim, the offence for which R.C.M. was being sentenced bore a number of features that Friesen specifically recognized as being aggravating, including the relationship and family dynamic that R.C.M. had exploited in committing the offence, the degree of physical interference and risk of harm to K.C. that his conduct involved, and the significant impact the offence had on her and may continue to have on her going forward.

In L.A. , Jackson J.A. described, again with reference to Friesen , how the presence of such factors should be seen as affecting the determination of a fit sentence: [38] Making it clear that it was not providing a checklist or an exhaustive set of factors, the Supreme Court offered some comments on significant factors to be considered when determining a fit sentence for offenders of sexual abuse against children in an effort “to promote the uniform application of the law of sentencing ” (at para 121).

The following list encapsulates those comments: … (b) “the only way to achieve both short-term and long-term protection of children may thus be to impose a lengthy sentence” (at para 124); (c) “[a]ny breach of trust is likely to increase the harm to the victim and thus the gravity of the offence” (at para 126); (d) “[a] child will likely suffer more harm from sexual violence where there is a closer relationship and a higher degree of trust between the child and the offender” (at para 126); … (j) “the moral blameworthiness of the offender is enhanced when the victim is particularly young and is thus even more vulnerable to sexual violence” (at para 135); (k) “courts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent. … [S]exual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy” (at para 136); … (m) “courts must recognize the violence and exploitation in any physical interference of a sexual nature with a child, regardless of whether penetration was involved” (at para 145); … [ 98 ] In other words, even though some of the aggravating features that were present in Okemaysim , C.C.D. and Solomon are not present in this case, the circumstances here still speak of an offence with a significant degree of gravity and a high degree of moral culpability on R.C.M.’s

part in committing it. [ 99 ] Taking all of that into account, I am unable to conclude that the sentence imposed against R.C.M. is clearly excessive, an unreasonable departure from a fit sentence, or that it diverges unreasonably from the types of sentences that would be expected for similar offenders in comparable circumstances.

While the sentence levied against R.C.M. may exceed what a similarly situated offender would have received prior to Friesen , and may also exceed the sentence that might have been imposed if the victim of his offence had not been a child, none of that is in any way indicative of unfitness. To the contrary, in my view, it is a sentence consistent with the new course charted by Friesen and its mandate to “consider more deeply the harms caused by the sexual abuse of children” ( L.A. at para 40 ). In other words, the sentence is not demonstrably unfit. This ground of appeal cannot succeed. D.

Conclusion on the sentence appeal [ 100 ] I would grant leave to R.C.M. to appeal against the sentence, but I would dismiss the appeal. V. Conclusion [ 101 ] For the foregoing reasons, I conclude that R.C.M.’s appeals must be dismissed. In accordance with the terms of his release order, R.C.M. shall surrender himself to the Saskatchewan Penitentiary on or before January 19, 2024, at 4:00 p.m. “Kalmakoff J.A.” Kalmakoff J.A.

I concur. “Jackson J.A.” Jackson J.A. I concur. “McCreary J.A.” McCreary J.A.