R v Friesen, 2018 MBCA 69

Citation: R v Friesen, 2018 MBCA 69 Date: 20180621 Docket: AR17-30-08797 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Holly C. Beard Madam Justice Janice L. leMaistre BETWEEN : HER MAJESTY THE QUEEN ) R. M. McElhoes ) for the Appellant ) Respondent ) R. N. Malaviya ) for the Respondent - and - ) ) Appeal heard: JUSTYN KYLE NAPOLEON FRIESEN ) January 9, 2018 ) ) Judgment delivered: (Accused) Appellant ) June 21, 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 ) . LEMAISTRE JA [ 1 ] The accused seeks leave to appeal and, if granted, seeks to appeal a concurrent six-year sentence imposed for the offences of sexual interference (see

section 151 (

a) of the Criminal Code (the Code )) and attempted extortion (see section 346(1.1) (

b) of the Code ). [ 2 ] For the reasons that follow, I would grant leave to appeal, grant the appeal and reduce the sentence to four and one- half years’ incarceration. Background The Facts [ 3 ] The accused met the mother of the four-year-old child of the sexual offence through an online dating website. On the date of the offence, the child and her two-year-old brother were being cared for by the mother’s friend. The mother picked up the accused and brought him home.

While the mother’s friend and the children were sleeping, she and the accused engaged in sexual activity in the mother’s bedroom. [ 4 ] The accused asked the mother to bring her daughter into the room so they could perform oral sex on her together and he could have intercourse with her. The mother turned on a recording device and so there is an audio recording of what happened next. The mother brought the child into the bedroom, removed her pull-up diaper and set her down on the bed naked. The child attempted to run but was prevented from leaving the bedroom.

While the accused was naked and masturbating, he directed the mother to “put her pussy on here” and to force the child to fellate him while his penis was erect. The mother’s friend was awoken by the child’s screams, entered the bedroom and took the child out of the bedroom. The accused demanded that the mother retrieve the child so that he could “rape her” and threatened to tell the mother’s friend that the mother had sexually abused her son two weeks earlier if she did not comply with his demand. The Circumstances of the Accused

[ 5 ] At the time of sentencing, the accused was 29 years old. The only entry on his criminal record was a conditional discharge for possessing marijuana and failing to appear in court. He claimed to remember little of the events and to have “blacked out for quite a while” due to drug and alcohol use on the night of the offence. However, he also claimed that drugs and alcohol had not been problems for him. A probation officer who prepared a pre-sentence report endorsed the results of a risk assessment which found the accused to be a high risk to reoffend by committing a sexual offence.

The probation officer expressed concern about the accused’s lack of insight into his behaviour and his failure to implement strategies to mitigate any future risk. The Sentencing Hearing [ 6 ] At the sentencing hearing, the Crown argued that the starting point for sentencing in this case was four to five years’ incarceration (three years increased to four to five years due to the age of the child) and sought a sentence of seven years’ incarceration concurrent on both offences because of the aggravating factors.

The accused sought a sentence of three years’ incarceration, reduced to two years for pre-sentence custody, followed by probation. The accused conceded that the events constituted a “major sexual assault”, but argued that there was no position of trust and, therefore, the four to five-year starting point did not apply (see R v Sidwell (KA) , 2015 MBCA 56 at paras 37-38 ). [ 7 ] The sentencing judge found that the sexual offence was a major sexual assault, but that the accused was not in a position of trust regarding the child.

He relied on Sidwell and determined that the starting point for sentencing in this case was four to five years’ incarceration. He referred to the mitigating and aggravating factors and imposed a sentence of six years’ incarceration concurrent on both charges. Issues and Positions of the Parties [ 8 ] The accused raises two grounds of appeal: 1) the sentencing judge applied the wrong starting point; and 2) he improperly weighed the relevant factors for sentencing. He argues that these are errors in principle warranting appellate intervention.

He contends that this case does not involve the aggravating features from Sidwell that would justify a four to five-year starting point, including: a position of trust, a family relationship, acts or threats of violence, pre-planning, stalking, grooming or a deliberate act. He relies on cases he says establish a range closer to three years’ incarceration for the circumstances of this case.

Finally, he says that the sentencing judge failed to explain the basis upon which he increased the sentence from the starting point of four to five years to six years. [ 9 ] The Crown concedes that the six-year concurrent sentence for attempted extortion is excessive in the circumstances of this case and suggests a sentence in the range of one to two years for this offence. It argues that the sentence imposed for the sexual offence was wholly appropriate regardless of the starting point used.

In support of its position, it points to the paucity of mitigating factors, the “lengthy list of significantly aggravating factors” and the need to ensure that the accused does not get a “free ride” on the attempted extortion offence (see R v RJ , 2017 MBCA 13 at para 13 ). Discussion Standard of Review [ 10 ] Counsel agree, as do I, that the standard of review on a sentence appeal is highly deferential.

In R v Houle , 2016 MBCA 121 , Mainella JA explained (at para 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 para 38 , [2012] 1 SCR 433; and R v Nasogaluak , 2010 SCC 6 at paras 43-46 , [2010] 1 SCR 206). Accordingly, the threshold for appellate intervention 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 beginning with 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 impacted the 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 the sentence, appellate intervention is not permitted ( Lacasse at para 45 ).

A sentence will be demonstrably unfit where it unreasonably departs from the principle of proportionality taking into account the individual circumstances of the offence and the offender and the acceptable 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). Did the Sentencing Judge Commit an Error in Principle? [ 11 ] In Sidwell , Steel JA considered the jurisprudence regarding sentencing in cases of criminal sexual conduct.

She explained (at para 38): This court has repeatedly affirmed the principle that where major sexual assaults are committed on a young person within a trust relationship by means of violence, threats of violence or by means of grooming, the starting point for sentence consideration is four to five years’ incarceration. See James [ R v James (GM) , 2013 MBCA 14 ] at para. 69; R. v. Myran , 2004 MBCA 7 at para. 4 ; R. v. R.W.T. ,

2006 MBCA 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 48 at para. 4 , 280 Man.R. (2d) 123. [emphasis added] [ 12 ] She concluded that it does not matter whether the charge is one of sexual interference or sexual assault; the same starting point applies. [ 13 ] The sentencing judge in this case found that the accused was not in a position of trust in relation to the child because the incident was isolated, no long-term relationship existed between the mother and the accused and there was no “carry over from the position of trust of [the mother]”.

Regardless, he concluded that “under all of the Sidwell terms and directions, I believe this does fit into a four to five year [starting point]”. [ 14 ] The accused argues that the sentencing judge erred in principle by applying the wrong starting point. As Mainella JA explained in R v Burnett , 2017 MBCA 122 (at para 9 ): Sentencing ranges and starting points are “tools” ( R v Lacasse , 2015 SCC 64 at paras 2 , 57) that appellate courts have designed to minimize the disparity of sentences between similar offenders committing a particular offence in like circumstances (see

section 718.2 (

b) of the Code ). [ 15 ] However, the choice of sentencing range or starting point is a discretionary decision and “cannot in itself constitute a reviewable error” ( R v Lacasse , 2015 SCC 64 at para 51 ). See also at paras 11, 60, 67. [ 16 ] That said, the four to five year starting-point approach in Sidwell presumes “a trust relationship” (at para 38). Abuse of a position of trust is an aggravating factor (see

section 718.2 (a)(iii) of the Code ). Therefore, by applying the starting-point approach in Sidwell , the sentencing judge relied upon an aggravating factor that he had found did not exist in this case. In my view, the sentencing judge committed an error in principle in doing so and the error is material because it impacted on his analysis in a meaningful way. [ 17 ] In light of the error committed by the sentencing judge, no deference is owed to his decision and this Court is free to consider the matter afresh. [ 18 ] Before moving on, I will comment briefly on the second ground of appeal.

The sentencing judge found a number of aggravating factors, including: the accused’s lack of insight, the very young age of the child, the impact of the abuse on the child and the fact that a third party had to intervene to stop the abuse. He balanced these factors against the mitigating factors and considered the circumstances of the accused and of the offences. I am not persuaded that he erred in principle by improperly weighing the relevant factors.

What is an Appropriate Sentence for Sexual Interference in this Case? [ 19 ] In R v Norton , 2016 MBCA 79 , Cameron JA summarized the approach to sentencing in cases involving the sexual abuse of children described by the Court in Sidwell (at para 27): In that case, Steel JA reviewed the Alberta Court of Appeal decision in Sandercock [ R v Sandercock , 1985 ABCA 218 ], which held that a major sexual assault includes acts of oral and vaginal sex (see para 37). However, she cautioned that characterization of an offence as a major sexual assault was not the overriding concern.

Rather, she stated (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. [ 20 ] Given the unique facts in this case, there are very few, if any, cases involving similar sexual acts and circumstances.

The accused relies on three cases which he says establish a range closer to three years for the circumstances of this case. [ 21 ] In R v Walker , 2014 MBQB 82 (leave to appeal to Man CA refused, 2015 MBCA 69 ), the Court imposed a sentence of three years’ incarceration on the 72-year-old accused for repeatedly sexually abusing a neighbour approximately 40 years earlier.

The victim was between four and nine years old when the accused forced him to commit acts of touching, fellatio and anal sex. [ 22 ] In R v Desjarlais , 2014 MBQB 224 , the Court imposed a sentence of two years less one day incarceration, followed by probation for sexual abuse that occurred over a period of several months when the victim was 15-years-old. The abuse started with kissing and escalated to touching, cunnilingus and digital penetration. The accused was a 60-year-old “aboriginal healer” (at para 1) and attended residential schools as a child, where he was abused.

His Indigenous background was a mitigating factor that impacted on his moral culpability.

[ 23 ] Finally, in R v P (KW) , 2016 MBQB 99 , the Court imposed a 30-month jail sentence on the 66-year-old accused for incidents of sexual touching and cunnilingus involving his four-year-old granddaughter. The accused had no prior criminal record and was the primary caregiver for his wife and two adult grandsons, who had special needs.

The Court found that the applicable starting point was four to five years, but that the accused’s “personal circumstances reflect important mitigating factors that may affect the starting point range of sentencing” (at para 46). [ 24 ] In my view, there are significant differences between the cases relied upon by the accused and the present case: • Walker does not involve similar circumstances because it is an historical sexual abuse case involving an accused of advanced age and in poor health who committed repeated acts of abuse. • The accused’s moral culpability in Desjarlais was mitigated by his Indigenous background. • P (KW) was similar in terms of the age of the victim and the limited duration of the abuse, but the differences are notable— while the accused was in a position of trust, he did not use violence and there were important mitigating factors. [ 25 ] The Crown points out that, in R v Myran , 2004 MBCA 7 , this Court upheld a 30-month sentence and stated, “In a major sexual assault upon a 13-year-old girl, a sentence of four to five years would normally be a reasonable starting point” (at para 4).

In the reasons for conviction, the judge found that the victim “did not really know [the accused]” ( R v Myran , 2003 CarswellMan 550 at para 4 (QB) ) and commented in her reasons for sentencing that she might have imposed a sentence of four or five years if the matter had been dealt with closer to when it occurred, which was 16 years prior to the sentencing hearing (see R v Myran , 2003 CarswellMan 551 at para 3 (QB) ). [ 26 ] The Crown also argues that the starting point for sentencing in this case ought to be higher than the three-year starting point applied in R v Hajar , 2016 ABCA 222 and R v Sandercock , 1985 ABCA 218 , because of the accused’s use of violence and the young age of the child.

I agree. [ 27 ] The maximum sentence for sexual interference is 14 years’ incarceration and the minimum sentence is one year.

Section 718.01 of the Code requires that a court give primary consideration to the principles of denunciation and deterrence when imposing a sentence for an offence that involves the abuse of a child. [ 28 ] In my view, the following aggravating factors are relevant to sentencing in this case: • t he child was particularly vulnerable: she was four years old and the offence was facilitated by the accused directing her mother to use force to achieve her submission; • the use of violence was more than what is inherent in a sexual offence, as evidenced by the child’s attempt to run and her crying which quickly escalated to screaming when her mother forced her to commit a sexual act; • the accused intended to have intercourse with the child and the sexual abuse only stopped because a third party intervened; • the accused lacks insight into his behaviour, which impacts on his risk when in the community, particularly in light of his comment to the probation officer that he “enjoys being around children”; and • the accused is a high risk to reoffend sexually. [ 29 ] There are very few mitigating factors in this case.

The accused had no prior criminal record, he was a victim of childhood sexual abuse and he expressed remorse.

The accused’s guilty plea does not carry much weight, given the strength of the prosecution’s case. [ 30 ] The accused had a difficult childhood (in addition to suffering sexual abuse), he has a history of dating women he meets on the internet, he has few supports in the community, he was terminated from his last job as a roofer due to problems with his behaviour, he has a history of drug use and he was abusing alcohol during the week that he committed the offences. [ 31 ] The circumstances of the offence in this case are serious and the degree of responsibility of the accused is high.

While the offence involved a single incident that lasted 21 minutes in total (the child was in the bedroom for only a few minutes), it was a major sexual offence. [ 32 ] The impact on the child was immediate and traumatic.

Moreover, because the accused instructed her mother to be directly involved in the offence, it is reasonably foreseeable that the mother’s involvement is likely to cause serious psychological or emotional harm beyond what the child would suffer as a result of the serious violation of her sexual integrity by the accused. [ 33 ] In my view, the above factors would warrant a sentence of four years for the charge of sexual interference on its own. However, the sentence for attempted extortion must also be considered.

What is an Appropriate Sentence for Attempted Extortion in this Case? [ 34 ] At the sentencing hearing, counsel for the accused did not recommend a specific sentence for the attempted extortion. The sentencing judge accepted the Crown’s argument that the attempted extortion was aggravating and should attract a concurrent sentence. [ 35 ] The offence of extortion is defined in

section 346 of the Code and involves using threats or violence to induce or attempt to induce a person to do something:

Extortion 346

(1) Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats,accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused ormenaced or to whom violence is shown, to do anything or cause anything to be done. [36] In R v Davis, (SCC), [1999] 3 SCR 759, Lamer CJC found that a threat to expose nude photos in orderto obtain sexual favours constituted the offence of extortion (see para 45).

He also concluded that the attempt to induce a person to dosomething “is completed once the offender threatens the victim with a view to extorting or gaining anything” (at para 59). [37] In my view, the complete offence of extortion was committed in this case (see Noel v R, 2001 NBCA 80 at paras 9-11). However, while the maximum sentences are different for extortion (life imprisonment—see section 346(1.1)(

b) of the Code) andattempted extortion (14 years’ imprisonment—see sections 24(1), 463(

a) of the Code), ultimately the fact that the accused entered aguilty plea to an attempt will not affect the sentence in the circumstances of this case. [38] The sentencing judge’s reasons demonstrate that he increased the total sentence to account for the offence of attemptedextortion. The result is that the accused did not receive a “free ride” for committing the additional offence (see R v Cook (N), 2014MBCA 29 at paras 34-35).

While I agree that the attempted extortion was sufficiently interrelated with the sexual interference to warranta concurrent sentence and the principle of “no free ride” is important, in my view, the six-year sentence imposed was excessive. [39] The offence was serious: after the mother’s friend removed the four-year-old child from the bedroom in order toprevent a continuation of the sexual offence, the accused tried to induce the mother to bring the child back so that he could “rape her” bythreatening to tell the third party that the mother sexually abused her two-year-old son. [40] I would sentence the accused to 18 months’ incarceration concurrent for the attempted extortion. [41] In order to maintain the principle of proportionality and to ensure that the accused does not receive a “free ride” forhaving committed multiple offences that are sentenced concurrently, resulting in an offence going unpunished, I would increase thesentence for the offence of sexual interference by six months to a sentence of four and one-half years’ incarceration to account for theconcurrent offence of attempted extortion (see R v Wozny, 2010 MBCA 115 at para 65; and Cook at para 35).

Conclusion [42] To summarize, in my view, the sentencing judge erred when he applied a starting point for sexual interference thatrequired a position of trust which was absent in this case. This error resulted in a sentence that was demonstrably unfit. Moreover, thesentence for attempted extortion was excessive. I would sentence the accused to four and one-half years for the offence of sexualinterference and 18 months concurrent for the offence of attempted extortion. JA I agree: JA I agree: JA