R. v. Sidwell (K.A.), 2015 MBCA 56

Citation: R. v. Sidwell (K.A.), 2015 MBCA 56 Date: 20150529 Docket: AR14-30-08174 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella BETWEEN : ) R. N. Malaviya and ) R. D. Lagimodière HER MAJESTY THE QUEEN ) for the Appellant ) Appellant ) J. L. Ostapiw and ) A. J. Braun - and - ) for the Respondent ) KEVIN ANDREW SIDWELL ) Appeal heard: ) January 5, 2015 (Accused) Respondent ) ) Judgment delivered: ) May 29, 2015 NOTICE OF RESTRICTION ON PUBLICATION : No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or a witness(es) (see s. 486.4 of the Criminal Code ) . STEEL J.A. [ 1 ] The Crown is appealing the two and one-half-year sentence imposed upon the accused with respect to a conviction for sexual interference. This appeal raises two issues, the applicability of the totality principle to expired sentences and the use of sentencing precedents in child sexual abuse cases. Facts [ 2 ] In 2008, the then 31-year-old accused befriended the complainant, a 14-year-old boy attending, and later employed at, a youth drop-in centre where the accused was a supervisor.

After establishing a friendship with the boy and his family, the child was permitted to stay overnight with the accused. Over time, the boy began to view sexual acts as mandatory when he would stay over, which would be two to four times a month. Over a 16-month period, from May 2008 to August 2009, the two repeatedly engaged in masturbation, oral sex and anal sex. [ 3 ] The boy felt pressured by the accused because of threats that the accused would go out and take drugs if he did not comply with the sexual acts.

He felt responsible for the accused and did not want to see him drink or use drugs during these time periods. When the boy ended the “relationship,” the accused assaulted him and sent him harassing emails. The accused exerted pressure on the complainant in the form of threats to tell his parents that he was gay, preying on his emotions, and threats of physical violence. [ 4 ] The accused began another sexual relationship with a 12-year-old boy just before this one ended. This second relationship continued over a year, from June 2009 to June 2010.

The details of the conduct are unknown and were not given to the court in this matter, however, in his factum the accused indicates that it “involved a relationship that was similar in nature to the one with” the

complainant in this case. [5] In the course of the investigation into the charges involving the second boy, this complainant revealed that theaccused had assaulted him and sent him harassing emails, but did not reveal the sexual abuse committed by the accused upon him. [6] As a result of the complainant’s revelations, the accused was charged with common assault and criminal harassment,pled guilty and, in July 2011, received a sentence of one day plus three years’ probation.

At the same time, the accused was chargedwith invitation to sexual touching and abduction with respect to the second boy, pled guilty and received an effective sentence of twoyears’ incarceration plus three years’ probation. [7] In 2012, the complainant in this case finally disclosed the sexual abuse by the accused. After trial, the accused wasfound guilty of invitation to sexual touching, sexual assault and sexual interference. The charge of sexual assault was judicially stayed atthe request of the Crown pursuant to Kienapple v. R., (SCC), [1975] 1 S.C.R. 729.

In April 2014, the accused wassentenced on the charges of sexual interference and invitation to sexual touching to two and one-half years’ incarceration. Decision of the Sentencing Judge [8] During the sentencing of the accused for sexual interference, the sentencing judge declined to consider whether thiswas a “major sexual assault” so as to attract the range of sentence developed in the cases for sexual assault.

She stated that, “thequestion of whether an offence amounts to a major sexual assault is not relevant when dealing with charges of sexual interference” (atpara. 22). [9] In addition, the sentencing judge interpreted R. v.

James (G.M.), 2013 MBCA 14, 288 Man.R. (2d) 269, to mean that(at para. 24): ... [W]hen imposing a sentence for a historical offence which occurred within the same timeframe as an offence for which the offenderhas previously been sentenced, the approach to be used is as though the court were imposing a sentence for multiple offences…. [10] The sentencing judge then concluded that if the charges involving both boys had been dealt with at the same time,consecutive sentences would have been warranted.

She determined that a three-year sentence would be appropriate with respect to thecharge of sexual interference, but that based upon the principle of totality, and taking into account the two-year sentence imposed uponthe accused with respect to the other boy, she reduced the sentence on this conviction from three years to two and one-half years for aglobal sentence of four and one-half years for the sexual abuse of both victims. [11] The Crown appealed, arguing that the sentencing judge erred on two grounds.

First, she erred in her application of thetotality principle since the second offence she was taking into consideration was not before her for adjudication and as well, that thesentence of imprisonment had already expired. Second, she erred in not considering the sentencing precedents for sexual assault on achild in a situation of trust when imposing a sentence for sexual interference involving similar facts. Analysis and Decision Standard of Review [12] It is trite law that the standard of review on a sentence appeal is a high mountain to climb.

An appellate court shouldnot intervene unless there is an error in principle or the sentence is demonstrably unfit. An error in principle includes failing to considera relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to a relevant factor or overemphasizing anappropriate factor. “Demonstrably unfit” in the sentencing context refers to a sentence falling outside the acceptable range of sentencesunder similar circumstances (R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500; R. v. Ruizfuentes (H.S.), 2010 MBCA 90 atpara. 7, 258 Man.R. (2d) 220; and R. v.

Gabriel (Q.J.), 2013 MBCA 45 at para. 17, 291 Man.R. (2d) 291). [13] If an error in principle has occurred, then the appellate court need not extend deference to the original sentence. Theappellate court can look at the matter from a fresh perspective and impose the sentence that it deems appropriate in the circumstances or,the appellate court may find that, notwithstanding the error in principle, the original sentence is still fit and uphold that sentence. See,for example, R. v. Proulx, 2000 SCC 5 at para. 123, [2000] 1 S.C.R. 61; and R. v. Smoke (D.D.), 2014 MBCA 91 at para. 43, 310 Man.R.(2d) 123; and R. v.

Johnson (F.), 2012 ONCA 339 at para. 16, 291 O.A.C. 350. [14] For the reasons set out below, I have concluded that the sentencing judge erred and, therefore, I am entitled to imposethe sentence that I deem appropriate in the circumstances without deferring to the sentence imposed by the judge below. The Effect of Incarceratory Sentences not Before the Sentencing Court on the Principle of Totality [15] A foundational principle of the Canadian sentencing regime is the principle of proportionality. See R. v. Ipeelee, 2012SCC 13 at para. 37, [2012] 1 S.C.R. 433.

As the Criminal Code (the Code) indicates in s. 718.1, a sentence must be proportionate to thegravity of the offence and the degree of responsibility of the offender. This principle is based upon the fundamental notion that thedegree of punishment must reflect the gravity of the offence and the moral blameworthiness of the offender. Otherwise, society willhave no confidence in the law or the fairness and rationality of the legal system. See Johnson at para. 15. [16] An important component of the principle of proportionality is the principle of totality, which is embedded in s. 718.2(c)of the Code.

Where consecutive sentences are imposed, a court shall also take into consideration whether the cumulative sentence isunduly long or harsh. A judge must ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.

These principles were embedded in the common law even prior to the enactment of s. 718.2(c). See M. (C.A.) at para. 42. [17] In this case, the sentencing judge applied the principle of totality by taking into account a sentence that had alreadybeen served.

After reviewing the nature of the offences and the accused’s history, the sentencing judge interpreted the James case tomean that “the approach to be used is as though the court were imposing a sentence for multiple offences” (at para. 24). [18] I agree with the Crown that the approach taken by the sentencing judge in this case is actually contrary to the approachmandated by this court in James. [19] In James, the accused pleaded guilty to two counts of sexual assault in 1997 and received a sentence of three and one-half years.

In 2011, the accused pleaded guilty to two more counts of sexual assault, which occurred close in time to the previous sexualassaults but which involved different victims. The sentencing judge in James held that if all four offences had been before the court in1997, the appropriate total sentence would have been one of about six years’ imprisonment. She then applied the principle of totality tosentence the accused to two years’ imprisonment for the two new sexual assault convictions.

In effect, she applied the totality principlein relation to charges not before the court and for which the accused had already served a term of imprisonment. [20] Similarly, in this case, the sentencing judge started her analysis by indicating that she was required to approach theimposition of sentence as though she were dealing with multiple offences, the ones before her and the ones that had been dealt withpreviously. In her words, the accused “should be sentenced as though the charges were dealt with at the same time” (at para. 24).

Shethen applied the principle of totality and reduced the overall sentence on that basis. [21] This court in James indicated that was an incorrect approach in that case and it is incorrect in this case. The error arosein considering, as part of the total sentence, charges for which the accused had already been sentenced and which had already expired,even though the offences arose during the same time period as this current charge.

A court should sentence for the charges in front of it,instead of focussing on what the sentence “might” have been if all the offences had been dealt with together and by using that theoreticalsentence to determine the sentence for the current offences. [22] As MacInnes J.A. explained in James (at para. 56): The starting point for her analysis should have been to focus upon the offences before her, not what happened in the past or may havehappened if the accused had been sentenced for all four offences in 1997. …. [23] Thus, it was an error for this sentencing judge to conclude that the accused “should be sentenced as though the chargeswere dealt with at the same time” (at para. 24).

The charges were not being dealt with at the same time. In July 2011, the accusedentered guilty pleas to the other charges and was sentenced. With respect to the present charge, he was convicted after trialapproximately two and one-half years later, long after his custodial sentence had expired. [24] The defence argues that this case is distinguishable from James since in James, the court was dealing with differentcomplainants and in the case at bar, the prior sentencing included an assault and criminal harassment on the same complainant.

Theaccused’s behaviour underlying the criminal harassment conviction was discussed as part of this case. I cannot accede to that argument. While it would not be appropriate to sentence the accused for conduct for which he has already been punished, the complainant in thiscase should not be victimized further because he could not initially bring himself to acknowledge publicly the sexual aspect of hisrelationship with the accused. “Reasons for delay are many and at least include embarrassment, fear, guilt or a lack of understanding andknowledge” (R. v.

D.D., 2000 SCC 43 at para. 65, [2000] 2 S.C.R. 275). [25] The accused further argues that there are situations where it is fair and just for a judge to consider the totality principlein respect to consecutive charges where some of those charges are not in front of the sentencing court. To rule otherwise would depriveoffenders of an important component of proportionality which prevents consecutive sentences from being unduly long or harsh.

It issubmitted that the totality principle is a valuable tool for judges dealing with situations such as historical offences that are not reporteduntil a later date or warrants that are not executed due to police error. [26] The accused relies on the case of Johnson, from the Ontario Court of Appeal, and R. v.

Saran (J.S.) (1996), (MB CA), 113 Man.R. (2d) 205 (C.A.), from this court to support the position that the totality principle can be applied incases in which an earlier sentence has already expired. [27] In the Johnson case, the Ontario Court of Appeal applied the totality principle to an offender who was convicted of anumber of offences that took place while he was on a temporary absence pass from a correctional institution.

The court stated that theprinciple of totality could be applied in a “situation where a sentencing judge must impose a fit sentence on an offender convicted of oneor more offences where that offender is at the same time serving the remainder of a sentence for a previous conviction or convictions” (atpara. 19).

Even so, the court went on to explain that the totality principle will have a tempered effect in situations where a subsequentsentence is imposed on top of the remainder of an existing one, noting that “an offender ... ought not to be seen to be reaping benefitsfrom his previous serious criminal misconduct” (at para. 23). [28] The court in Johnson relied in part upon the Manitoba Court of Appeal decision in Saran, where this court applied theprinciple of totality when sentencing an offender who was convicted of an offence while on parole.

The court held that a court wasentitled to take into account the fact that the sentence currently being imposed would be consecutive to the unfinished portion of aprevious sentence. In Saran, this court at para. 14 relied upon the British Columbia Court of Appeal’s decision in R. v.

Bueger (B.K.)(1994), (BC CA), 48 B.C.A.C. 266, in which Donald J.A., discussed how the unexpired portion of a previous sentencecan be relevant to the totality principle since the unexpired portion of a prior sentence can address some of the public protection andrehabilitation concerns of the sentencing court with respect to an offender being sentenced for a new offence.

[29] As an aside, I should point out that the approach in Saran has met with some criticism. In R. v. Barrett (A.W.), 2012NLCA 46 at para. 19, 324 Nfld. & P.E.I.R. 246, the Newfoundland and Labrador Court of Appeal did not feel that the totality principleshould be applied to any sentences not before the sentencing judge even if those sentences have not yet expired. Hoegg J.A., for thecourt, noted that, “A totality analysis pursuant to s. 718.2(

c) does not expressly address consideration of offences which are not beforethe sentencing court” (at para. 24). She further stated, “It would be impractical and inappropriate, and in some cases impossible, for asentencing judge to incorporate into his or her proportionality analysis an assessment of the ‘gravity’ of an offence and the offender’s‘degree of responsibility’ for it, when that offence is not before him or her” (at para. 30).

The court also referred to the “irrationality inreducing a sentence based on totality in circumstances where the offender had committed a new offence while he was on parole whereasthere would be no such reduction if the offender had committed the offence after his parole had been completed” (at para. 19). [30] Leaving aside for the purposes of this case the criticism of Johnson and Saran, in both of those cases, the sentence wasstill ongoing. In those cases, the fact that the accused was still incarcerated could be taken into consideration when determining theaccused’s prospects for rehabilitation.

The fact that the accused should not be crushed by a heavy sentence, as this would not allow himto learn from his mistakes and will cause him to lose all motivation to reintegrate with society upon release, was still a relevant concern. [31] In this case, the sentences for the previous offences have expired. Any impact they might have had on the accused hasalready occurred. The totality principle serves a different purpose in sentencing. It looks to the future and offers one last reality check.

Having already considered the offences and the offender, and the aggravating and mitigating factors for the multiple offences, andhaving arrived at an appropriate sentence for each offence, the principle requires the sentencing judge to ask the following question: Isthe aggregate length of the future incarceration, for the consecutive multiple offences so long that, given this accused and his prospectsfor rehabilitation, it deprives him of all hope? [32] That does not mean that this accused’s history in regard to offences that took place at the same time is irrelevant.

InJames, the 15 years that had passed since the offences, his programming during incarceration and his substantial rehabilitation since thattime were extremely important considerations that this court took into account when sentencing him at that time. In this case, as with allcases, the accused’s criminal record, the passage of time and the life lived since the offences took place are all factors to be taken intoaccount when sentencing. [33] As observed by the British Columbia Court of Appeal in R. v. Johnston, [1989] B.C.J. No. 1542 (QL) (C.A.): ….

Other similar offences, whether committed before or after that for which an accused is being sentenced, may well be of considerableimportance in determining the character of the accused, the extent, if any, to which there has been rehabilitation, the likelihood ofrehabilitation in the future …. Sentencing in Cases of Criminal Sexual Conduct [34] The discussion of this issue should begin with the case of R. v.

J.A.G., 2008 MBCA 55, 228 Man.R. (2d) 99, which wascited by the sentencing judge to support her view that sentencing guidelines dealing with a major sexual assault of a child were relevantonly in cases of sexual assault and not in cases of sexual interference. [35] J.A.G. does not stand for the proposition that a sexual interference conviction can never fall within the category of amajor sexual assault. The facts in that case were significantly different than the facts in the present case.

In that case, the sexual actsincluded fondling of the child’s penis on six occasions and placing the accused’s penis against the child’s buttocks on four occasions. The court indicated that the precedents given to the judge were not really appropriate for the kind of conduct that was in front of her. The court in that case was not making a definitive determination that sexual assault precedents could never be considered whensentencing for sexual interference.

Rather, it appears that the major sexual assault precedents put before the sentencing judge were toodissimilar to the fact situation presented to be of value. [36] The determination of an appropriate range of sentencing is fact-specific, as well as charge-specific. When consideringan appropriate sentence, a sentencing court should conduct that analysis in the context of factually similar cases.

All cases of childsexual abuse should be treated in a principled manner, and if the conduct of the accused and the circumstances of the offence andoffender are similar, then similar sentences should result. [37] In this case, the sexual acts took place repeatedly over a 16-month period and included masturbation, oral sex, anal sexand attempted anal sex. As the Alberta Court of Appeal held in R. v. Sandercock (1985), 1985 ABCA 218 , 62 A.R. 382 (C.A.),these acts constitute major sexual assaults (at para. 13): ….

This category, which we would describe as major sexual assault, includes not only what we suspect will continue to be called rape,but obviously also many cases of attempted rape, fellatio, cunnilingus and buggery …. [38] This court has repeatedly affirmed the principle that where major sexual assaults are committed on a young personwithin a trust relationship by means of violence, threats of violence or by means of grooming, the starting point for sentenceconsideration is four to five years’ incarceration. See James at para. 69; R. v. Myran, 2004 MBCA 7 at para. 4; R. v.

R.W.T., 2006MBCA 91 at para. 4, 208 Man.R. (2d) 60; R. v. G.S.F., 2009 MBCA 5 at para. 4, 236 Man.R. (2d) 51; and R. v. J.R.A., 2012 MBCA 48at para. 4, 280 Man.R. (2d) 123.

[39] Subsequent case law from our court confirms the view that the statement in J.A.G. should be confined to its context, andshould not be read to mean that sexual assault sentences are irrelevant to convictions other than those specifically for sexual assault. [40] If the conduct supporting a child sexual abuse conviction meets the elements of a major sexual assault, it appears thatour court will consider the incident to be a major sexual abuse incident and relevant sentencing precedents established with respect tomajor sexual assaults involving a child will be considered.

So, for example, in G.S.F., this court treated a conviction for sexualexploitation in a manner similar to a conviction for a major sexual assault for sentencing purposes and held that the starting point tosentencing when it is committed in a trust situation is four to five years’ imprisonment (see paras. 4-6). [41] Again in J.R.A., the accused had been convicted of sexual interference for causing “his daughter … to repeatedly fellatehim over a three and one-half year period” (at para. 2).

Notwithstanding the nature of the charge, these facts were held to constitute amajor sexual assault and the court held that “the starting point to sentencing when the offence is committed in a trust situation or familyrelationship is four to five years’ imprisonment” (at para. 4). [42] Other appellate courts have taken the same view when dealing with cases of sexual interference.

For example, in R. v.D.K. (1994), 1994 ABCA 219 , 155 A.R. 269, the Alberta Court of Appeal considered the appropriate sentence with respect to acharge of sexual interference which involved the accused simulating intercourse with his naked five-year-old stepdaughter andconcluded that, depending on the circumstances, it may constitute a major sexual assault and that the same sentencing principles shouldapply as in cases of sexual assault. [43] The Alberta Court of Appeal has continued to treat sexual interference convictions in the same way as sexual assaultconvictions for sentencing purposes, where the underlying conduct supports a finding of a serious violation of the sexual integrity of achild (i.e., a major sexual assault).

See, for example, R. v. G.B., 2013 ABCA 93, 544 A.R. 127, where sexual interference chargesinvolving numerous incidents of fellatio, cunnilingus and other sexual touching was equated to “a major sexual assault on a child” (atpara. 26); R. v. Skwarchuk (K.), 2007 ABCA 195, 409 A.R. 87, where sexual interference involving forced fellatio with a 13-year-old defacto family member was “a serious sexual assault and for that matter a major sexual assault” and “a serious violation of the child’ssexual integrity” (at para. 3); and R. v.

R.A.S., 2015 ABCA 21 at para. 12 (QL), where the court determined that sexual interference,which involved repeated fondling of a young child by a close family friend, could constitute a major sexual assault and upheld the four-year sentence imposed upon the accused. [44] The Saskatchewan Court of Appeal has similarly taken the view that sentencing precedents for child sexual assault maybe utilized when imposing a sentence for sexual interference or with respect to historic sexual offences against a child. See, for example,R. v.

E.S., 2001 SKCA 38, 213 Sask.R. 312, where the court equated a case of sexual touching to a serious sexual assault and R. v.D.L.M., 2001 SKCA 39, 207 Sask.R. 228 (a charge of sexual interference). [45] The Ontario Court of Appeal has for some time treated cases of child sexual abuse in a similar manner, regardless of thecharge, for sentencing purposes. For example, in R. v. D.D. (2002), (ON CA), 157 O.A.C. 323, the court consideredthe appropriate range of sentence for adult offenders who engaged with children for sexual purposes.

The court was unconcerned withthe exact charges, describing them only in general terms as sexual abuse. Rather, it was concerned primarily with the nature of thesexual acts, the surrounding circumstances, and the effects such actions would have on the child. Moldaver J.A., as he then was,concluded for the court (at para. 44): To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young childrenon a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms.

When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physicalviolence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, incases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higherpenalties will be warranted. …. [46] The New Brunswick Court of Appeal is of the same view as the other appellate courts. In R. v.

L.C. (1990), (NB CA), 110 N.B.R. (2d) 332 (C.A.), the argument on appeal was that the sentencing judge had erred in referring tosexual assault cases as precedents in sentencing the accused on charges of sexual touching and sexual interference. The court soundlyrejected this argument, stating (at para. 10): ….

When sentencing the trial judge must consider the specific acts and the circumstances in which they occur, including, for example,the relative ages of the accused and victim, the position the accused occupies towards the victim, the frequency or casualness of theincidents, their likely effect on the victim and, of course, the likelihood of the accused’s rehabilitation. In this sense it is possible to useas a guide sentences for somewhat similar conduct involving sexual assault. …. [47] The academic commentary on this point is in accord with the appellate case law. In Gary R. Clewley, Paul G.McDermott & Rachel E.

Young, Sentencing: The Practitioner’s Guide (Toronto: Canada Law Book, 2014) (loose-leaf), the authorsstate (at para. 8.700): . . . . .

…. The vulnerability of children is acknowledged in the imposition of minimum sentences for sexual interference, an offence which almost always involves

an act that could also be labeled sexual assault. Therefore it would be reasonable to assume the sentencing case law for sexual interference in

Chapter 5 can also be consulted in determining the range of sentence for a sexual assault on a child. [ 48 ] As well, equating child sexual assault sentences and sexual interference sentences, where the conduct of the accused is similar, seems to be congruent with sentencing principles set out in ss. 718.01 and 718.2 of the Code . In particular, s. 718.01 and subs. 718.2( a )(ii.1) refer to an offence that involves the abuse of a person under the age of 18 years.

They deem such conduct to be an aggravating factor and indicate that the court should give primary consideration to the objectives of denunciation and deterrence. Thus, where the victim is under 18 years, it will not matter whether the offence is sexual assault or sexual interference.

Both offences will involve abuse of a child, and will both, accordingly, be subject to the same principles. [ 49 ] Therefore, I conclude that regardless of whether the charge in this case is one of sexual interference or sexual assault, the jurisprudence indicates that the starting point is four to five years for the major sexual assault of a child when in a position of trust, assuming that the accused is a mature person with no criminal record and prior good character. See R. v. Borkowsky (H.) , 2008 MBCA 2 at para. 58 , 225 Man.R. (2d) 127; and R. v.

E.H.M. , 2015 ABCA 131 at para. 8 (QL). [ 50 ] I hasten to add that a starting point is just that. Sentencing is an extremely fact-based, individualized exercise, and sentencing judges are free to depart from this starting point where the individual circumstances of the case warrant a different sentence. Starting points are merely guidelines to help the court and each sentence must be crafted to accord to its own set of facts.

It is for the sentencing judge to determine if these guidelines apply and where the circumstances surrounding the offence and the offender place an accused in relation to the starting point. [ 51 ] As this court has indicated in J.R.A. (at para. 5 ): …. … [A]s with all starting points, any relevant aggravating or mitigating circumstances relating to the offence or the offender will then “push the sentence up or down the scale of appropriate sentences for similar offences” …. [ 52 ] What is important is to find an appropriate sentence which responds to the conduct of the accused and the aggravating and mitigating circumstances, rather than determining specifically whether the accused’s conduct constituted a major sexual assault.

Sentencing precedents should be sought out that involve similar sexual acts and circumstances. [ 53 ] It is impossible to list all the aggravating and mitigating factors that courts might consider.

However, when weighing the nature of the sexual violation in a particular case, courts have looked to the following factors, among others: • The relative ages of the child and the accused; • The nature of the position of trust between the child and the accused; • The exact nature of the conduct involved; • The length of time the relationship existed and the frequency of the incidents; • Whether the sexual violations were accompanied by physical violence, threats of physical violence, or other forms of extortion or psychological manipulations; and • The impact on the child.

Decision [ 54 ] The sentencing judge should not have applied the principle of totality and reduced a three-year sentence by six months, to a sentence of two and one-half years. Given that error, I am free to consider the matter anew. In addition, while not necessarily an error of law, her refusal to consider the relevant jurisprudence places her three-year sentence in doubt.

[ 55 ] Given the nature and frequency of the sexual violations in this case, the length of time that the sexual violations continued, the age of the complainant, and the position of trust, I would describe this conduct as a major sexual assault which comes within the jurisprudence that indicates a starting point of four to five years. [ 56 ] What then is the appropriate sentence in this case? At the original sentencing, the Crown sought a sentence in the range of six to seven years’ custody, while defence counsel sought a sentence of two and one-half years’ custody.

On appeal, the Crown submits that the same range is still appropriate, while the defence argues that the sentence of two and one-half years should not be disturbed. [ 57 ] The Crown submits that there are a number of aggravating factors that should push the sentence beyond the starting point. This accused was the 14-year-old complainant’s employer and a close family friend. He repeatedly took advantage of the boy during sleepovers. Although no victim impact statement was filed, the complainant’s evidence from the trial demonstrated that the impact on him was considerable.

In particular, the complainant experienced alcohol abuse issues, minor involvement with the law, and relationship and family difficulties. [ 58 ] As well, the abuse of trust here was particularly egregious. As the trial judge explained in her oral reasons: The accused got to know the complainant’s family fairly early on in his relationship with the complainant. The complainant’s parents were sympathetic to his circumstances and offered their support to him. He came for dinner. He spent time with them and their other children.

He attended family events and holidays, and by all of their descriptions, he was treated by them as one of their own. [ 59 ] In mitigation, it is submitted that, while the accused grew up in a relatively affluent environment, it was an emotionally deprived one. His mother suffers from serious mental health issues and he has never met his father. He has a Grade 12 education and completed most, but not all, of a business degree. Before sentencing, he had been working as the manager of a local restaurant for the past year or so. He began using alcohol at age eight and drugs at age 12.

His grandparents were significantly involved in his upbringing and it was the death of one of them in 2009 which contributed to his drinking and drug use seriously escalating at that time. [ 60 ] The defence argues that, while a sentence of two and one-half years is at the low end of the range, it is appropriate in these circumstances, given the progress that the accused has made since his last sentencing. Apparently, the accused has remained clean and sober since his arrest in 2010 and has made considerable efforts to gain control over his life.

Since his release in 2010, he has been able to comply with the direction and expectations of his probation officer and has been living a prosocial lifestyle. [ 61 ] The pre-sentence report compiled in February 2014, detailed the steps the accused was taking to overcome a number of personal problems. From the time period of November 29, 2011, until he was sentenced on April 15, 2014, the accused made significant strides, particularly in the area of substance abuse.

The report stated that: …. … [O]ngoing sessions have been targeted to address a host of other relevant issues connected to overall wellness and risk management (i.e., substance abuse, relationship issues, family connection, employment, financial stability, stress management, emotional regulation and trauma recovery).

In this regard, [the accused] has demonstrated a commitment to his stability by attending all of his scheduled appointments, being an active participant in sessions, securing fulltime employment, better managing his finances, abstaining from drugs and alcohol, exploring and addressing his childhood abandonment and mistreatment, developing and maintaining healthier boundaries with his mother, and developing healthier strategies to manage his life and risk. [ 62 ] What is quite troubling, however, is that the accused was assessed as a high risk to reoffend sexually, that he was unwilling to take responsibility for his sexual offending and has not completed appropriate sexual offender counselling.

The pre- sentence report confirmed that the accused continued to insist that he never engaged in any inappropriate sexual behaviour with either the complainant in this case or the youth involved in the earlier charges.

An interview with two of the accused’s primary supporters, who have been involved in his life for approximately 15 years on a daily to bi-weekly basis, stated that, while they noted huge changes in him over the past eight months and had not seen any signs of drug or alcohol abuse since 2010, they also indicated that the accused has maintained his denial of ever having engaged in inappropriate sexual behaviour. [ 63 ] The report concluded that: ….

Despite this, as well as the numerous gains he has made in relation to improving his life and managing his overall risk, [the accused]’s current denial of engaging in any sexual misconduct leaves him in a position of being unwilling/unable to provide any insights he may have into the precursors/risk factors associated with his recent conviction or any strategies that he may have/be utilizing to manage these specific risk factors. [ 64 ] As the sentencing judge indicated, “lack of remorse or acceptance of responsibility is not an aggravating factor but it is often an indicator that a court needs to be concerned with specific deterrence.

In cases of violence or predatory behaviour, it may also be an indication an offender is a danger and suggests that rehabilitation may not be successful” (at para. 16). A person who refuses to admit they have engaged in behaviour is not likely to be successfully treated for it. See R. v. B.A. , 2008 ONCA 556 , 238 O.A.C. 198; and R. v.

Nash (A.W.) , 2009 NBCA 7 , 340 N.B.R. (2d) 320. [ 65 ] The accused submits that he did ultimately take responsibility for this offence at the sentencing. The accused, through his counsel, offered an admission at the sentencing hearing that, in fact, he had engaged in the behaviour at issue. His counsel stated that when these allegations were first raised in 2012, the accused’s feelings of shame were so overwhelming that he simply could not admit what he had done. Now, having come some distance in gaining control of his life and insight about himself, he is able to acknowledge his actions.

The sentencing judge specifically took note of this as well as the circumstances of the admission. She concluded that this was a huge step for him and should be seen as such. [ 66 ] She stated in her reasons for sentence (at para. 28): …. However, I am mindful of the considerable emotional and psychological issues which were an aspect of [the accused]’s behaviour.

I also accept that while he has not yet addressed his sexual offending, in the two years plus that he has been out of prison [he] has made significant gains in living a prosocial lifestyle and has his drug and alcohol abuse under control. [ 67 ] While I accept that the acknowledgment in court by his counsel was a significant step, I would point out that this admission in April 2014 comes two months after the completion of the pre-sentence report in February 2014, in which the accused continued to deny to the probation officer, and to his long-term friends who were interviewed by the probation officer, that any sexual improprieties occurred.

It may be that he gained insight into his actions within those two months, but I remain somewhat skeptical. [ 68 ] This was a serious sexual violation of a child by an accused in a position of trust that lasted over 16 months and involved acts of masturbation, oral sex and anal sex. The accused’s continued denial of any sexual violations until the day of sentencing indicates a lack of insight that places him at a high risk to reoffend. As a result of his denial, he has not had any sexual counselling. [ 69 ] There are a number of other aggravating factors present in this case.

Already mentioned are the first two: the fact that the victim was under 18 years of age and that the accused abused a position of trust in relation to the complainant.

In addition, s. 718.2 ( a )(iii.1) identifies a further aggravating factor: “evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.” Although no victim impact statement was filed, the sentencing judge specifically mentioned in her reasons that, “the evidence at trial showed that the impact of the offences on the complainant was considerable” (at para. 8). [ 70 ] Removing the deduction of six months for totality, the original sentence arrived at by the sentencing judge was three years.

Does this sentence adequately address the moral culpability of the accused or the aggravating and mitigating factors previously noted? I think it does not. [ 71 ] Normally, given all the aggravating factors mentioned, including the assessment of the accused as being of high risk to reoffend and his previous conviction for a similar offence, the sentence might be pushed higher than the starting point of four years. However, I acknowledge that the accused has made progress in his life since both being released from prison and committing the offences upon the complainant.

This is a significant factor to consider when dealing with dated offences and was a factor this court placed weight upon in the James case. In the James case, the accused had undergone considerable sexual counselling and there was evidence that substantiated his rehabilitation. Such mitigating factors are not present here. Nonetheless, the accused should be given credit for the progress he has made generally in turning his life around. Therefore, I would not accede to the Crown’s request for a higher sentence than the starting point of four years. [ 72 ] Leave to appeal is granted.

The appeal is allowed and the sentence is varied to that of four years. J.A. I agree: J.A. I agree: J.A.