R v SJB, 2018 MBCA 62

Citation: R v SJB, 2018 MBCA 62 Date: 20180522 Docket: AR17-30-08921 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN : ) R. D. Lagimodière her majesty the queen ) for the Appellant ) Appellant ) S. B. Simmonds and ) C. P. J. MacDonald - and - ) for the Respondent ) s. J. b. ) Appeal heard: ) April 30 , 2018 (Accused) Respondent ) ) Judgment delivered: ) May 22 , 2018 NOTICE OF RESTRICTION ON PUBLICATION : No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code ) . mainella JA Introduction [ 1 ] The Crown seeks leave to appeal the accused’s sentence of 18 months’ imprisonment, followed by three years’ supervised probation, for his conviction for sexual exploitation in relation to his stepdaughter (the complainant). The principal issue on the appeal is whether the judge mischaracterised circumstances of the commission of the offence as mitigating. For the following reasons, I would grant leave to appeal and allow the appeal.

Factual Background [ 2 ] The complainant was seven years old when the accused began a relationship with her mother. The accused eventually married the complainant’s mother and the couple had two children together. [ 3 ] Over time, the marriage became unhappy. The accused had a demanding job as a customs officer. Stress in the family was exacerbated by the complainant’s mother’s parents passing away and her suffering a debilitating illness. The couple drifted apart and there were intimacy issues.

The complainant began to co-parent her younger siblings with the accused. [ 4 ] In 2015, when the accused was 31 years old and the complainant was 17 years old, he initiated significant conversations with her about sex. He raised the idea of the two of them having sexual intercourse. Ultimately, he asked her if she wanted to and she said “sure.” They agreed to a code word for when they would have sex when the complainant’s mother was away from the house. [ 5 ] Over an approximately two-month period in 2015, the accused had unprotected sexual intercourse with the complainant 10 to 12 times.

On some of the occasions, the complainant’s younger siblings were in the home while it was occurring. On the evening of May 20, 2015, the complainant’s mother walked into the garage and discovered the two having sexual intercourse. The discovery ultimately led to the accused being arrested by police. [ 6 ] In her police interview, when the complainant was asked if the accused physically “forced” her to have sex, she said “no.” She also confirmed that, during the sexual relations, no intimate photos were taken. [ 7 ] The incident ended the accused’s marriage. He resigned from being a customs officer.

He has had restricted access to his children. Unsurprisingly, the complainant’s mother has been devastated by the offence against her daughter. She stated in her

victim impact statement: “He broke her. He broke our marriage. He broke our family.” [8] The offence has had a significant psychological impact on the complainant (see

section 718.2(a)(iii.1) of theCriminal Code). Her trauma experience includes contemplation of suicide; social disconnection from friends and family; constant fear ofsexual contact by men; sadness, depression and anger about the loss of being a normal teenager; anxiety about what others think of herand fear of being judged; self-blame for letting it occur; feelings of helplessness; negative memories of the events; and loss of trust inothers.

The complainant needs long-term counselling. [9] In terms of the accused’s background, he has no history of significant mental-health difficulties or compromisedphysical health. He grew up without any significant trauma. He has a high school education. A forensic psychologist’s report indicatedthat he had appropriate insight into his criminal behaviour, as well as victim empathy, an absence of sexually deviant interests orbehaviour, and a lack of indication of psychopathy. The psychologist found no evidence of the accused having any arousal for children.

He was assessed as a low risk for recidivism for sexual offences. [10] In the course of the two years between arrest and sentencing, there were positive developments in the accused’s life. He was employed as a construction worker. He started a new relationship with a supportive partner. He has familial and communitysupport. He undertook significant clinical therapy on his own initiative.

His therapist reported positively as to his progress in addressingthe cognitive distortions that resulted in the inappropriate sexual relationship, taking responsibility for what occurred, and the accused’sfuture potential of leading a productive and law-abiding lifestyle. [11] The accused pleaded guilty without the complainant having to testify. He did not have a prior criminal record. Heprovided a lengthy apology in court.

The Crown sought a sentence of a term of imprisonment of four years; the accused sought a lesserterm of between one to two years’ imprisonment to be followed by three years of supervised probation.

The Judge’s Decision [12] The aggravating factors the judge discussed in his reasons were the significant age difference between the accused andthe complainant; the accused’s position of trust to the complainant; the sexual intercourse was unprotected and took place a number oftimes over several months and only stopped when the two were discovered; and the offence had a significant impact on the complainant. [13] The mitigating factors he relied on that are not contested were the accused’s lack of criminal record; previous goodcharacter; sincere remorse and guilty plea; and seeking out and participating in therapy. [14] The three mitigating factors that the judge took into account, which the Crown submits was an error in principle, wereas follows: • these were acts of opportunity and not a situation where he was grooming his stepdaughter for this eventuality; • he did not coerce, threaten or pressure her to participate in the sexual intercourse; and • he did not take any photos or videos of her, or ask to. [15] The judge decided that the accused’s conduct did not engage the starting point of four to five years’ imprisonment for amajor sexual assault of a person under age 18 by a mature offender when in a position of trust, with no criminal record and prior goodcharacter (see R v Sidwell (KA), 2015 MBCA 56 at para 49).

He concluded that the more appropriate reference point was R v Frost,2016 MBQB 21, aff’d 2017 MBCA 43, where a sentence of an 18-month term of imprisonment, to be followed by three years’supervised probation, was imposed for sexual exploitation of a 17-year-old domestic helper.

Discussion Standard of Review [16] The standard of review on a sentence appeal is well known and was stated as follows in R v Houle, 2016 MBCA 121 (atpara 11): The law affords a sentencing judge great latitude in tailoring a sentence to the offence and the offender (R v Ipeelee, 2012 SCC 13 at para38, [2012] 1 SCR 433; and R v Nasogaluak, 2010 SCC 6 at paras 43-46, [2010] 1 SCR 206).

Accordingly, the threshold for appellateintervention with a sentence is “very high” and limited only to situations of material error or where the sentence is demonstrably unfit(section 687(1) of the Code and R v Lacasse, 2015 SCC 64 at para 52, [2015] 3 SCR 1089). A material error has two qualities beginningwith demonstration of an error in principle, such as an error in law, a failure to consider or give sufficient weight to a relevant factor,consideration of an irrelevant factor or an overemphasis of an appropriate factor.

The second aspect is that the error must have impactedthe sentence in more than just an incidental way (see Lacasse at para 44). Where the error is harmless, as it has “no real effect” on thesentence, appellate intervention is not permitted (Lacasse at para 45).

A sentence will be demonstrably unfit where it unreasonablydeparts from the principle of proportionality taking into account the individual circumstances of the offence and the offender and theacceptable range of sentence for similar offences committed in similar circumstances (see Lacasse at paras 52-55; and R v Ruizfuentes(HS), 2010 MBCA 90 at para 7, 258 ManR (2d) 220).

The Offence of Sexual Exploitation—Section 153(1) of the Criminal Code [17] Experience teaches that, while the legal age of sexual consent is normally age 16, persons under age 18 are vulnerableto sexual exploitation by people in a position of trust or authority over them or with whom they are in a dependent relationship, such as aparent, relative, babysitter, teacher, counsellor or employer.

Parliament has prohibited any sexual activity between a young person and aperson to whom, because of the nature of his or her relationship, the young person is “in a position of vulnerability and weakness” (R vAudet, (SCC), [1996] 2 SCR 171 at paras 23, 36). Consent is not a defence (see

section 150.1(1) of the Criminal Code;

Audet at para 19; and R v Barabash, 2015 SCC 29 at para 35). The Crown does not have to prove that the accused actually exploited therelationship in the course of the touching done for a sexual purpose (see Audet at paras 17-18). [18] However, actual exploitation of such relationships often accompanies sexual touching; sadly, it is frequently the meansto the end the offender desires—his or her sexual gratification.

While actual exploitation of the relationship is not an element of theoffence, it is a circumstance of the commission of the offence that, if proven by the Crown, is an aggravating factor for the purposes ofsentence (see sections 718.2(a)(ii.1)—(iii) of the Criminal Code). Treating the Absence of Aggravating Factors as Mitigating [19] A sentencing judge is required by

section 718.2(

a) of the Criminal Code to take into consideration the principle that “asentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or theoffender”. [20] The sentencing judge cannot, however, use the absence of an aggravating factor as mitigating or the absence of amitigating factor as aggravating; to take either path is an error in principle. The absence of a mitigating or aggravating factor is neutral tothe determination of sentence.

As the Alberta Court of Appeal explained in R v Alcantara, 2017 ABCA 56 (at para 69): Reference to what an offender was not proven to do — the doing of which might aggravate the offence — is not a mitigating factor. It isthe absence of an aggravating factor. Consequently it would not be a mitigating factor as against, for example, a starting point or thebottom of an established range. By the same token, absence of mitigation is not aggravation: see eg Republic of Croatia v Snedden,[2010] HCA 14 [Austl HC] cited in Alcorn [R v Alcorn, 2015 ABCA 182] at para 36.

See also R v BM, 2008 ONCA 645 at para 7; and R c Barrett, 2013 QCCA 1351 at paras 24-25. [21] Counsel for the accused appropriately conceded at the appeal that the accused’s actions were inherently violent, giventhe complainant could not consent to sexual intercourse with the accused because of the nature of their relationship (see

section 150.1(1)of the Criminal Code). [22] Physical violence or the threat of it beyond the violence inherent in a sexual offence against a person under age 18 is anaggravating circumstance on sentencing (see Sidwell at para 53).

However, an offender who does not use or threaten additional non-sexual violence cannot claim the absence of that factor as reason to attenuate his or her high moral blameworthiness resulting from theexploitation of trust (see R v Stuckless (1998), (ON CA), 127 CCC (3d) 225 at paras 40-44 (Ont CA); and R v Archer(2005), (ON CA), 202 CCC (3d) 60 at para 170 (Ont CA)). [23] The judge erred when he characterised the lack of coercion, threat or pressure on the complainant to participate insexual intercourse as a mitigating circumstance of the commission of the offence.

The mere fact the complainant said “sure” to theproposition of the accused to having sexual intercourse does not reduce his moral blameworthiness. [24] Ostensible consent by a person under age 18, who cannot legally consent to the sexual contact in question, is not amitigating factor for the determination of the offender’s sentence (see R v Norton, 2016 MBCA 79 at para 42).

Given the views of theSupreme Court of Canada in Audet about the irrelevance of consent to criminal liability for the offence of sexual exploitation, it isinappropriate for a sentencing judge to mitigate a sentence because of the young person’s willingness to participate in sexual touchingwithout the exertion or threat of non-sexual violence (see R v JBS, 2009 ABCA 347 at para 4; and R v Hajar, 2016 ABCA 222 at paras84-103). [25] The judge also erred when he treated the absence of intimate images being taken or requested as being a mitigatingfactor.

While it was appropriate for the police to make that inquiry to find out what happened, whether or not it occurred has norelevance to the commission of the offence of sexual exploitation. If the accused had taken intimate images of the complainant duringthe course of sexual intercourse, that would have given rise to the separate offence of making child pornography (see

section 163.1(2) ofthe Criminal Code). In cases where both offences occur, consecutive sentences may follow (see R v Vigon, 2016 ABCA 75 at para 25;and R v ES, 2017 BCCA 354 at para 2). This properly reflects the separate harm that can arise from a permanent pornographic image ofa child being made.

Repeated Nature of the Sexual Exploitation [26] If proven, it is an aggravating factor that the offender groomed the person under age 18 for sexual activity before thecommission of the offence (see R v Storheim, 2014 MBQB 141 at paras 45-47, leave to appeal sentence to Man CA refused, 2015MBCA 14 at paras 68-69; and Sidwell at para 38). [27] It is not necessary to decide whether the judge misapprehended the evidence as to whether the accused groomed thecomplainant for sexual activity by virtue of their discussions and interaction prior to beginning to have sexual intercourse. [28] It is sufficient to address the judge’s conclusion that repeated acts of sexual intercourse was a mitigating factor becausethey were only “acts of opportunity”. [29] Generally, an extended period of sexual exploitation is an aggravating circumstance as opposed to a momentary loss ofcontrol such as what occurred in Audet.

Leaving aside the inference that can be drawn from the multiple acts of sexual intercourseoccurring over an approximately two-month period, the report from the accused’s therapist belies the suggestion this was a momentaryloss of control. He stated: This pair learned to appreciate each other, had conversations and shared information that normally takes place between adult parent-partners. This was the context in which their affection grew and eventually manifested sexual activity. They shared longer hugs,teasing, footsy in the hot tub and then kissing.

Sexual contact ensued. [The accused] experienced this escalation of affection and sex

with considerable internal conflict, knowing it was wrong yet also feeling it was occurring naturally, without pressure or coercion. He described feeling deeply afflicted with anxiety and guilt about his behaviour, convinced himself many times that he would not let it escalate and that it would never occur again, yet admittedly he failed to stop it. [ 30 ] The accused knew what he desired was wrong. Nevertheless, he exploited the stepfather/stepdaughter relationship for sex. He did not voluntarily stop the activity like the accused in Audet did.

His actual abuse of the complainant by exploitation of his position of trust or authority is an aggravating factor (see sections 718.2(a)(ii.1)—(iii) of the Criminal Code ). By treating the repeated instances of sexual intercourse as a mitigating factor, the judge erred in principle.

Materiality of the Errors in Principle [ 31 ] I have been persuaded that the effect of the judge’s errors in mischaracterising these three circumstances of the commission of the offence as mitigating had a real effect on the sentence and cannot be considered to be simply harmless errors (see R v Lacasse , 2015 SCC 64 at paras 44-46 ; and Houle at para 11 ). Accordingly, no deference is owed to the sentence he imposed.

What is an Appropriate Sentence? [ 32 ] As the offence involved the abuse of a person under the age of 18, primary consideration must be given to the sentencing objectives of denunciation and deterrence (see

section 718.01 of the Criminal Code ). [ 33 ] The aggravating factors in this case are:

i) the nature of the relationship between the accused and the complainant was one of in loco parentis ; ii) the significant age difference between the accused and the complainant; iii) the accused actually abused his position of trust to the complainant who was under age 18; iv) the sexual intercourse was unprotected, took place over several months, and was not stopped until the two were discovered; and

v) the offence had a significant impact on the psychological health of the complainant. [ 34 ] The mitigating factors in this case are the accused’s:

i) lack of a criminal record; ii) previous good character and support in the community; iii) guilty plea without requiring the complainant to testify; iv) seeking out and participating in therapy prior to sentencing; and

v) low risk of recidivism and general good prospects for rehabilitation. [ 35 ] The judge’s reliance on the precedent in Frost was misplaced. That was not a situation where the offender stood in loco parentis to the victim, which is an aggravating circumstance (see R v Bachewich , 2007 ABCA 199 at para 6 ; R v M , 2008 ONCA 47 at para 6 ; and R v RMD , 2014 BCCA 56 at para 16 ). For the purpose of imposing a sentence for the offence of sexual exploitation, the nature and duration of the relationship between the offender and the victim is important to assessing moral blameworthiness.

Here, the complainant never had a meaningful relationship with her biological father. The accused was the only father figure she had ever had from an early age. The magnitude of the breach of trust following a ten-year stepfather/step-daughter relationship is in an entirely different league in terms of seriousness from the relationship in Frost that existed over just a few months between the offender and the domestic helper whom his wife hired to assist the family.

The scars that the accused’s conduct will have on the complainant and her relationships with several members of her family may never go away and cannot be addressed by simply ceasing contact with the accused. [ 36 ] The Crown argued that the accused’s conduct involved a serious violation of the sexual integrity of a victim under age 18 by someone in a position of trust and that the starting point should be a sentence of four to five years’ imprisonment (see Sidwell at para 49).

The logic of that position is based on the comments of the Supreme Court of Canada in Audet that, where an offender “actually abuse[s]” his or her position of trust or authority with the young person, the effect of the Criminal Code is that such conduct amounts to a sexual assault. As La Forest J explained (at para 22): The Code thereby specifically provides that, for the purposes of ss. 271, 272 and 273, the exercise of authority (s. 265(3)( d )) and the abuse of a position of trust, power or authority (s. 273.1(2)( c )) will vitiate consent.

While conscious of the minor differences in terminology in s. 153(1) , s. 265(3)(

d) and s. 273.1(2)( c ), I note that in most if not all cases in which the evidence shows that an accused in a position or relationship referred to in s. 153(1) with respect to the complainant actually abused his or her position in relation to the complainant to obtain the alleged sexual favours, the accused will at least have committed a sexual assault — a more serious offence — against the young person, since ss. 265(3)(

d) and 273.1(2)(

c) provide that there is no consent in such a situation. The

interpretation proposed by the respondent therefore leads to a rather absurd situation. The offence provided for in s. 153(1) would be rendered totally irrelevant, since almost all the situations covered by s. 153(1) of the Criminal Code would in any event be covered by s. 271 , 272 or 273 , as the case may be. The offence of sexual exploitation would ultimately add nothing. Moreover, a person in a position of trust or authority towards a young person, or with whom the young person is in a relationship of dependency, would commit a less

serious offence by abusing his or her privileged position to obtain sexual favours from a young person than by doing the same thing in relation to an adult. It is patently obvious that such an

interpretation is totally at odds with Parliament’s objective in passing s. 153 of the Code . [ 37 ] The concern I have with the Crown’s position is that, as I have explained, it is not an element of the offence of sexual exploitation that the accused did actually abuse his or her position of trust or authority.

To automatically say that a conviction for sexual exploitation means the starting point for sentence is the same as a major sexual assault is contrary to comments made by this Court in Sidwell that all sentences with respect to the sexual abuse of a person under age 18 must be arrived at “in a principled manner” (at para 36). [ 38 ] In some sexual exploitation cases, this Court has found the analogy to a major sexual assault persuasive (see R v GSF , 2009 MBCA 5 ); in other cases, less so (see Frost ).

Sentencing offenders for the offence of sexual exploitation requires acute sensitivity to subtleties related to the commission of the offence, the offender, the harm occasioned to the victim(

s) and the needs of society. It is not necessary to say anything more other than to reiterate the comments made by Steel JA in Sidwell (at para 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. [ 39 ] The punishment for offenders committing sexual offences involving persons under age 18 has been steadily increasing over the last decade as there is greater understanding that, while the physical harm such offences cause is often transitory, the psychological harm is typically permanent and significant (see R v RJ , 2017 MBCA 13 at para 11 ). A few months after the commission of the offence here, Parliament raised the maximum punishment for sexual exploitation from 10 years to 14 years’ imprisonment (see

section 4 of the Tougher Penalties for Child Predators Act , SC 2015, c 23). [ 40 ] Given that this was a case of repeated sexual abuse of a person under the age of 18, which included penetration, by a stepfather actually abusing his position of trust, there is no principled reason not to look to the four to five-year starting point discussed in Sidwell .

Sexual exploitation offenders in other provinces similarly situated appear to face comparable sentences (see R v JJW , 2004 ABCA 50 at para 14 ; R v M(D) , 2012 ONCA 520 at paras 30-44 ; R v Worthington , 2012 BCCA 454 at paras 35-45 ; R v DM , 2012 ONCA 894 at paras 65-69 ; and ES at paras 60-61). [ 41 ] I am, however, of the view that an individualized sentence for this accused requires a reduction of sentence from the starting point despite that this was a serious breach of trust.

In my view, by the accused commencing a rehabilitative path involving intensive therapy before being sentenced, it is appropriate to place greater emphasis on the sentencing objective of rehabilitation, particularly for a first offender unlikely to re-offend, without unreasonably departing from the law’s requirement that primary consideration be given to the objectives of denunciation and deterrence. [ 42 ] Accordingly, although the accused’s moral blameworthiness is high, a fit sentence in the circumstances would be one of three years’ imprisonment. Disposition [ 43 ] Leave to appeal is granted.

The appeal is allowed and the accused’s sentence is varied from a term of 18 months’ imprisonment, followed by three years’ supervised probation, to a term of three years’ imprisonment. The ancillary orders imposed on the date of the original sentence will remain. JA I agree: JA I agree: JA