R v Brar, 2020 MBCA 58

Citation: R v Brar, 2020 MBCA 58 Date: 20200604 Docket: AR18-30-09042 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Mr. Justice Christopher J. Mainella Madam Justice Karen I. Simonsen BETWEEN : ) S. B. Simmonds, Q.C. and ) A. R. Hodge her majesty the queen ) for the Appellant ) Respondent ) R. D. Lagimodière and ) A. L. Kindle Pejovic - and - ) for the Respondent ) Jasbir Brar ) Appeal heard: ) December 18, 2019 (Accused) Appellant ) ) Judgment delivered: ) June 4, 2020 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 ) . monnin JA [ 1 ] The accused appeals from three convictions of sexual assault on the ground that the trial judge erred in dismissing his motion for a stay of proceedings based on a breach of his rights under

section 11(

b) of the Canadian Charter of Rights and Freedoms (the Charter ). [ 2 ] In his amended notice of appeal, the accused alleged that his conviction was a miscarriage of justice as a result of ineffective assistance of his trial counsel, (different than counsel on this appeal). The accused, however, advised the Court that he was abandoning this ground of appeal.

Therefore, his appeal is grounded only on the question of delay. [ 3 ] The accused was charged with committing sexual assault and sexual exploitation against L.T. in 2013, sexual assault against L.E. in 2008, sexual assault and sexual exploitation against D.P. in 2011 and sexual assault against C.C. in 2014. All of the allegations involved the accused assaulting his female students while working as a driving instructor. All of the assaults involved non- penetrating touching by the accused over the complainants’ clothes with his hand or unwanted kissing.

The accused was acquitted of sexual assault and sexual exploitation against L.T. [ 4 ] With respect to the allegations made by C.C., the accused was arrested on January 22, 2014 and the charge was laid on January 23, 2014. With respect to the allegations of L.E. and D.P., the accused was arrested again on March 4, 2014 and the charges were laid on March 5, 2014.

Both L.E. and D.P. had made complaints to the police during the year in which they allege that the incidents took place, namely 2008 and 2011. [ 5 ] The accused’s trial began on March 15, 2017 with an application by the Crown to adduce similar-fact evidence and an application by the accused to sever the counts he was facing. On April 4, 2017, the trial judge denied the severance application and granted the similar-fact application. [ 6 ] On May 19, 2017, one month prior to the start of the evidentiary portion of the trial, the accused filed a delay motion pursuant to

section 11(

b) of the Charter . However, that motion, with concurrence of counsel, was not argued until all of the trial evidence had been heard. In a 28-page endorsement, in which the trial judge dismissed the accused’s application, the trial judge explained that the delay motion was heard after the trial as the application was filed “too late in the day” to be argued prior to trial. He

also stated that this was being done with the consent of counsel. [7] In agreeing to do so, the trial judge acknowledged in his endorsement, that this Court had released a decision a fewdays before the delay motion was argued that set out that motions for delay are to be heard before a trial. In his endorsement, the trialjudge wrote: We have a clear statement from our Court of Appeal in R v. Schenkels, 2017 MBCA 62, that motions for delay are to be set down whentrial dates have been established and then subsequently heard prior to trial.

Paragraph 64 of that decision bears repeating: Despite the failure of the accused’s motion, I wish to point out that defence counsel properly moved with appropriate dispatch for thestay based on delay well before the jury trial began. This was in keeping with the approach mandated in Jordan [R v Jordan, 2016 SCC27]. In my view, once a trial date is set, if there is to be a motion for delay, it should be filed and determined as soon as possible, asopposed to waiting until the eve of the trial. This is particularly so when the trial is with a jury.

The facts necessary to decide a motionfor unreasonable delay are essentially established once a trial date is set and any other pre-trial motions are determined. If the motion issuccessful, the trial dates can be used for other accused persons, thereby ameliorating delay pressures on the justice system as a whole. [8] I have difficulty understanding the rationale for proceeding in this fashion, particularly because the two weeks thathad been set aside for the trial were more than sufficient to hear both the delay motion and the trial evidence.

If the application had beenheard and granted, the result would have meant that a two-week trial was unnecessary and a basic waste of judicial resources. This alsoopened the door to problems with the issue of prejudice to the accused, of which I will have more to say further in my reasons. [9] There was disagreement between the accused and the Crown as to the length of the delay and to whom that delay wasattributable. The trial judge found that the accused’s delay amounted to approximately six months, of which one month and four dayshad been disputed by the accused.

This resulted in a net delay of 35 months as to C.C., 33 months as to L.E. and D.P. and 32 months asto L.T. The trial judge justified his arriving at those totals as follows: The first delay period of one month and 4 days is contested by the accused. The Crown indicates that in June of 2014, it offered casemanagement dates in the Provincial Court to the defence starting as early as August 12, 2014, and as late as September 16, 2014. Thedefence accepted the last possible date, and that is why the Crown argues the selection of the last possible available date offered to thedefence should count as a Defence Delay.

The defence counters by arguing that the day before the scheduled case conference (September 15, 2014), the Crown disclosed furthervideo statements of L.E. and D.P. that the defence could not have reviewed prior to the case conference, and this resulted in anadjournment of that case conference to November 25, 2014, where the Preliminary Inquiry dates were ultimately set. The videostatement of L.T. was disclosed September 17, 2014. I disagree with the defence submissions on this point.

A detailed review of each and every witness video statement prior to the caseconference did not preclude meaningful discussions about the case and the timelines for the litigation process to move forward. Preliminary Inquiry dates could have been scheduled on September 16th without the need for the defence to review every item of Crowndisclosure in advance.

Accordingly, this First Delay from August 12 to September 16, 2014 (one month and 4 days), can properly be counted as Defence Delay. [10] From 1992 until July of 2016, issues of delay were decided in accordance with the principles set out by the SupremeCourt of Canada in R v Morin, (SCC), [1992] 1 SCR 771.

From July 2016 onwards, the issue of delay in bringingmatters to trial is now governed by the Supreme Court of Canada decision in R v Jordan, 2016 SCC 27; and R v Williamson, 2016 SCC28, which was reaffirmed and slightly expanded by the decision in R v Cody, 2017 SCC 31. [11] The trial judge set out how he understood the Jordan analysis was to be conducted. In his endorsement, he wrote: The new framework for

section 11(

b) can be summarized as follows: 1. There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases triedin the provincial court, and 30 months for cases in the superior court.

2. Defence Delay does not count towards the presumptive ceiling. This results in an analysis requiring a calculation of the total delay, which is the period from the charge to the actual or anticipated end of the trial. Once Total Delay is established, there is a deduction of Defence Delay which results in the Net Delay ( Jordan , at para. 66). 3. From Net Delay, any discreet event is deducted which results in Remaining Delay ( Jordan , at para. 75). 4.

If the Remaining Delay exceeds the presumptive ceiling, as it does in this case, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances ( Jordan , at para. 47). Failing a successful rebuttal by the Crown, a stay will follow, unless a transitional exception can be successfully argued. 5. Exceptional Circumstances lie outside the Crown’s control in that (1) they are not reasonably foreseeable or are reasonably unavoidable, and (2) they cannot reasonably be remedied. 6. Exceptional circumstances require a qualitative assessment.

If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If, however, the exceptional circumstance arises from the particular complexity of a case, the delay is not used to deduct specific periods of delay. If the Crown succeeds on the particularly complex case analysis, the delay will be found to be reasonable. It should be noted that isolated steps that have features of complexity are not considered exceptional circumstances. 7.

If the Remaining Delay falls below the presumptive ceiling, in clear cases, the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. 8. This new framework with the 18 and 30 month ceilings applies to all cases in the system prior to the July 2016 release date of the Jordan decision, but a Transitional Exception Rule is set out in R. v. Jordan .

The Transitional Exception Rule allows for the framework to be applied flexibly and contextually, with due sensitivity to the parties’ reliance on the previous state of the law. ( See R. v. Coulter , 2016 ONCA 704 , 133 O.R. (3d) 433 , at paras. 34-41 ). 9. Under the Transitional Exception Rule, the Crown must prove that the parties reasonably relied on the law as it existed pre- Jordan .

Like the “particular complexity” exception, this will be a qualitative exercise, requiring the court to examine all relevant circumstances under the old Morin Framework, which included general level of diligence, seriousness of the offence and the absence of prejudice as decisive considerations.

At the end of the day, the Transitional Exception Rule acknowledges that parties cannot be judged on a standard of behaviour which they could NOT have known of before Jordan was delivered in July of 2016. [ 12 ] The Crown conceded that the net delay exceeded the presumptive ceiling of 30 months and in order to rebut the presumption of unreasonable delay, it relied on the exceptional circumstance exception, arguing that the case was particularly complex or that, in the alternative, the transitional exception should apply. [ 13 ] The trial judge found that the facts of the case did not meet the definition of “particularly complex” and he went on to consider whether the transitional exception applied. [ 14 ] Keeping in mind that trial dates were set prior to Jordan being released, the trial judge stated that he was satisfied that the Crown had acted diligently and efficiently after the release of Jordan : As to the issue of delay following to the release of Jordan , I am satisfied that the Crown was essentially handcuffed to the trial

schedule mutually agreed to prior to Jordan and was then forced to wait while the defence laid low and mulled over its intentions to bring a delay motion. There was no ability for the Crown to adapt to the Jordan framework after the decision was released. [ 15 ] The trial judge then considered the pre- Jordan delay which ran for a period of 18 months from the time of charge on January 23, 2014, to July 8, 2016, when Jordan was released. He proceeded to consider this delay period through the lens of the framework set out in Morin .

Although he had found that the case did not meet the definition of “particularly complex” under Jordan (see para 13 above), he was satisfied that it involved an added degree of complexity when compared with a “garden variety prosecution”. He wrote in his endorsement:

I agree that there was an added degree of complexity to this case that resulted in additional effort coordinating the disclosure and reviewing the evidence, and all of this would take more time than a case with one complainant. The delay in this case was in the ball park for pre- Jordan cases of this nature. The fact that it ultimately took only two days for the Crown to put in its case does not make the case simple, as the defence suggests. [ 16 ] The trial judge then proceeded to consider the seriousness of the offences.

Part of what he had to say on this issue is as follows: Due to the fact that the evidence at trial preceded argument on the Charter motion, there was, in my view, a significant distortion in how defence counsel approached the Charter argument as to seriousness of the offence. To be clear, none of the complainants testified that the sexual touching included intercourse or penetration, and I suspect this fact lead defence counsel to argue, incorrectly in my view, that the sexual assaults described by the complainants were not serious. . . .

But the degree or severity of a sexual assault being complained of, in my opinion, has nothing to do with the fact that sexual assault is a serious crime. Every time a perpetrator intentionally touches a victim in a sexual way with knowledge that there is no consent to that touching, a serious offence under our law has been committed. Sexual assault is a serious crime in my view, even if the touching is gentle in nature or does not include intercourse or penetration.

To be clear, however, I do not intend to have these comments apply to or be interpreted as part of the weighing process that is an integral part of a sentencing hearing, where the punishment after a conviction on such offences is at issue. Although there has been increasing awareness as to the serious harm caused by sexual assault in our country, it remains poorly understood by many. Sexual assault is a serious offence in all circumstances, in my view, because it communicates to victims that they are not fully equal members of our society and are somehow entitled to lesser rights than others.

Every single sexual assault informs victims that they do not have full control over their bodies and have no say in when and how their bodies are touched by a perpetrator for a sexual purpose. Every single sexual assault constitutes a violation of the bodily integrity of a victim and the right of a victim to feel safe and secure anywhere they might choose to be, whether at home, at school, at work or during their free time.

Sexual assault is a serious offence, regardless of its severity, because it creates severe social consequences that lead victims to live in fear of a whole host of repercussions, such as their ability to continue with their education or employment or the ability to maintain their status as full and vital members of their families and the social and cultural communities they belong to. Sexual assault is also a serious crime because it often has severe negative consequences that cascade through the lives of victims and their families.

Sexual assault often brings with it negative consequences to family and intimate relationships. There is also, quite tragically, a tendency in some circles to blame victims for not preventing the crime or speaking out strongly immediately afterwards, which creates significant shame and fear in victims. I need not go on, but there surely can be no doubt that in cases where victims are under 16 years of age or under the authority of the perpetrator, the crime is that much worse.

Any allegation of sexual interference or sexual interference by any definition of the term has to be considered to be a serious crime. [ 17 ] He then went on to find that the accused had not been prejudiced by the delay. He came to this conclusion based on the accused’s evidence during the course of the trial. He stated: It is also important to note that the evidence of prejudice pointed to by the accused was not borne out by his testimony at trial which was strikingly detailed as to each complainant.

The accused had vivid memories of each complainant and was able to describe the routes taken by the complainants during the course of their lessons and he could offer significant details as to streets and intersections where various incidents occurred. On occasion, the accused could even recall which direction the car was driving in and specific comments that were made by the complainants during lessons that were unrelated to driving.

If indeed the accused was unable to find records or notes of these lessons due to the lapse of time as he alleged his very detailed and considerable memory of these events is indeed astounding. In my view, the rich details offered by the accused about the four complainants make it impossible for me to accept the prejudice argument as it relates to the loss or degradation of evidence. There was

no evidence lost in the “mists of time” as the accused argued. [ 18 ] Ultimately, the trial judge dismissed the accused’s application stating: My analysis of the factors under the Morin Framework, particularly as they relate to the seriousness of the charges and that no actual prejudice was proven, lead me to conclude that the

section 11(

b) Charter rights of the accused have not been breached. The Crown, in my view, has met the burden of proof to overcome the presumption of unreasonableness of the delay under the Transitional Exception set out in Jordan . For that reason, I am dismissing the application of the accused for the stay of proceedings. [ 19 ] The standard of review on a delay application was considered by Beard JA in R v Vandermeulen (M) , 2015 MBCA 84 . She wrote (at paras 24-30): The appellate courts have been consistent as to the standard of review to be applied to the first three categories: (

i) errors of fact, including whether there was prejudice to the accused, are reviewed on the standard of palpable and overriding error (. . .) [citations omitted] (ii) errors regarding the articulation and application of the legal principles are reviewed on the standard of correctness [citations omitted]; and (iii) errors in the assessment, characterization and allocation of the Morin factors are reviewed on the standard of correctness [citations omitted].

A review of the jurisprudence regarding the fourth category, being errors in the ultimate conclusion of the reasonableness of the delay, shows that appellate courts are, at present, split on the applicable standard of review.

On the one hand, the courts in Ontario and British Columbia have, at least recently, adopted the standard of correctness for this fourth category of error. [citations omitted] On the other hand, the courts in Saskatchewan, Manitoba and Nova Scotia have taken the position that arriving at the ultimate conclusion involves the balancing of various competing interests which is a discretionary decision by the trial judge that is entitled to deference and attracts a high standard of review.

Thus, barring an underlying error in one or more of the first three categories, the trial judge’s ultimate conclusion on the reasonableness of the delay will be upheld unless it is unreasonable. [citations omitted] While Canadian appellate courts are not, at the present, consistent in the standard of review for this fourth category, an analysis of the decisions that adopt the correctness standard reveals that they have only overturned a trial judge’s decision on the ultimate conclusion and the reasonableness of the delay when the appeal court has determined that the trial judge committed a relevant, underlying legal error or an overriding factual error.

Further, the application of the deference standard to the ultimate conclusion regarding the reasonableness of the delay only occurs if there are no underlying legal errors or overriding factual errors. If such errors are found and are material, then deference is no longer owed and the appellate court must step in to reassess the delay periods and re-evaluate the question of whether there has been an unreasonable delay. Thus, while two standards have been articulated for the review of the trial judge’s ultimate conclusion, in practice there may be little or no difference in the outcomes.

That said, clarification of this inconsistency is required and may occur in the near future, as the Supreme Court of Canada has granted leave to appeal two

section 11 (

b) decisions, KGW [ R v KGW , 2014 ONCA 598 ] and R v Jordan (BR) et al , 2014 BCCA 241 , 357 BCAC 137. [ 20 ] In

summary, therefore, errors of fact, including whether there was prejudice to the accused, are to be reviewed on a standard of palpable and overriding error. Errors regarding the articulation and application of the legal principles are to be reviewed on a standard of correctness as are errors in the assessment, characterisation and allocation of the Morin factors. Finally, barring an underlying error in one or more of the above-noted categories, the trial judge’s ultimate conclusion on the reasonableness of the delay will be upheld unless it is unreasonable.

[ 21 ] The accused alleges that the trial judge erred in denying his application for a stay because of delay. He argues that the delay of one month and four days, attributable to the defence because of case conference dates, should not have been attributed to him. His counsel chose a case management date in September rather than in August. The accused also points out that it was the Crown that requested that the case be managed.

This ground is to be reviewed on a standard of palpable and overriding error. [ 22 ] Further, the accused argues that the trial judge failed to conduct a proper Morin analysis, and finally, that he erred in his conclusions as to the seriousness of the offences and that the accused suffered no prejudice because of the delay.

On the issue of prejudice, he argues that the trial judge erred when he considered the trial evidence to arrive at his finding and that he failed to consider the matter of inherent prejudice. [ 23 ] As to the lack of a proper Morin analysis, I view the accused’s complaint as more of a complaint of ineffective analysis, as opposed to the lack of one. He also argues that the trial judge should have conducted three different analyses, one for each complainant.

This ground is to be reviewed on a standard of correctness. [ 24 ] The Crown takes the position that deference is owed to the trial judge’s decision absent a material underlying error and that no such error existed. [ 25 ] The Crown argues that, based on Jordan , the trial judge was correct in his attribution of one month and four days of delay to the accused as both the Crown and the Court were ready to proceed on the earliest of the proposed case management dates. See Jordan at para 64 .

In addition, the Crown argues that the trial judge did not err when he found that, although the accused had not received full disclosure from the Crown at the time the case management conference was to be held, he had received sufficient disclosure to allow him to proceed at that time.

Again, the Crown relies on Jordan and argues that the spirit of Jordan should guide counsel to be proactive in streamlining issues and having meaningful discussions with the ultimate goal of reducing overall delay. [ 26 ] On the issue of prejudice, the Crown argues that the trial judge did not err when he relied on the accused’s trial evidence to anchor his finding that the accused was not prejudiced by the delay. Furthermore, as to inherent prejudice, the Crown simply argues that there was none.

It relies on Morin , where the Court stated that, “In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual [

section 11 ( b )] right is seriously undermined” (at p 801). [ 27 ] Finally, the Crown argues that the charges against the accused were all of a serious nature and that the trial judge was correct in his assessment that they were.

The Crown concedes that there is a spectrum of acts that constitute sexual assault and that the trial judge’s finding that, “Sexual assault is a serious offence in all circumstances” is not an error. [ 28 ] Dealing first with the issue of attributing one month and four days of delay to the accused, I do not accept the accused’s argument that such a period of delay should be attributed to the Crown because it chose to proceed by way of case management.

Proceeding in such a manner is provided for under the rules of the court, and considering the number of complainants and charges, it was a prudent and efficient way in which to proceed. [ 29 ] Case management dates were offered to the accused in June of 2014, with the earliest date being August 12, 2014 and the latest being September 16, 2014. The accused accepted the latest date. The record before us does not disclose the reason why the accused’s counsel could not agree to a conference on the earliest date or another date close in time.

The accused now argues that he had not received full disclosure by the September 16th date and that, therefore, the time period between the first and last available dates were attributed to him in error. [ 30 ] I agree with the trial judge that a detailed review of each witness’s video statement is not required in order to move a matter along (see para 9 of these reasons). [ 31 ] I have not been satisfied that, in making this attribution of delay time to the accused, the trial judge made a palpable and overriding error and, accordingly, I would dismiss this argument as a basis for granting the delay motion. [ 32 ] The accused’s argument that the trial judge failed to conduct a proper Morin analysis is two pronged.

Firstly, he argues that the trial judge misunderstood the issue of the seriousness of the offences and, secondly, that the trial judge failed to consider the inherent prejudice to the accused as a result of the delay and that he further erred in finding that there was no actual prejudice. [ 33 ] In dealing with the issue of actual prejudice, as I have previously set out in para 17 of these reasons, the trial judge anchors his decision on the evidence that the accused provided in his testimony during his trial. [ 34 ] As to the issue of inherent delay, the trial judge’s endorsement is basically silent on that matter.

The accused argues that such a silence indicates that it was not considered by the trial judge and is therefore an error. The Crown takes the position that the issue was argued by both counsel, and that, although not specifically referred to in his endorsement, the trial judge was alive to the issue and the fact that he did not specifically address it is not a reversible error. [ 35 ] I acknowledge that the accused must have suffered an element of inherent prejudice simply because of the amount of time he was under charge, but he has not satisfied me that the trial judge simply ignored this issue.

It was before him and his lack of addressing it specifically does not, in and of itself, lead to a conclusion of error on the trial judge’s part. [ 36 ] I am more troubled that the trial judge based his decision of a lack of actual prejudice on evidence that would not have been before him had the motion for delay been argued before the trial, as it should have been. I am hesitant to state outright that this is an error, to a degree because of the acquiescence of counsel to the timing, but the manner in which the trial judge arrived at this decision is concerning.

It is a further demonstration of why delay motions should be heard before the evidentiary portion of a trial begins. [ 37 ] Dealing with the issue of seriousness, if I ever had an inclination to find error in the trial judge’s analysis, I have been dissuaded from doing so as a result of recent pronouncements by the Supreme Court of Canada in R v Friesen , 2020 SCC 9 .

[38] Friesen is a sentencing decision involving a sexual assault on a child, but what the majority of the court said withrespect to the seriousness of sexual assault generally applies as well to this case. Commencing at para 140 of their reasons, Wagner CJCand Rowe J write (at paras 140-47): We would not go so far in this case as to hold that defining a range or starting point according to the type of physical acts that it capturesnecessarily amounts to an error of law.

However, we would strongly caution provincial appellate courts about the dangers of defining asentencing range based on penetration or the specific type of sexual activity at issue. In particular, courts must be careful to avoid thefollowing four errors. First, defining a sentencing range based on a specific type of sexual activity risks resurrecting at sentencing a distinction that Parliamenthas abolished in substantive criminal law.

Specifically, attributing intrinsic significance to the occurrence or non-occurrence ofpenetrative or other sexual acts based on traditional notions of sexual propriety is inconsistent with Parliament’s emphasis on sexualintegrity in the reform of the sexual offences scheme. As we have explained, Parliament abolished the distinctions the Criminal Codeformerly drew between offences based on whether penile penetration was involved. For sexual assault and sexual interference, the samemaximum sentence thus applies regardless of whether penetration was involved.

Making the presence or absence of penetration thecornerstone of a sentencing range would thus bring the old substantive law back indirectly by recreating at the sentencing stage thepropriety-based distinctions that Parliament abolished in the substantive law (Boyle [Christine L. M. Boyle, Sexual Assault (Toronto: Carswell, 1984) at p. 177; see also Nadin-Davis [R. Paul Nadin-Davis “Making a Silk Purse? Sentencing: The ‘New’ Sexual Offences”(1983), 32 CR (3d) 28], at p. 46). Second, courts should not assume that there is any clear correlation between the type of physical act and the harm to the victim.

Inassessing the significance of the degree of physical interference as a factor, as Christine Boyle writes, “judges should think in terms ofwhat is most threatening and damaging to victims” (p. 180). Judges can legitimately consider the greater risk of harm that may flowfrom specific physical acts such as penetration. However, as McLachlin J. explained in McDonnell [R v McDonell, (SCC), [1997] 1 SCR 948], an excessive focus on the physical act can lead courts to underemphasize the emotional and psychologicalharm to the victim that all forms of sexual violence can cause (paras. 111-15).

Sexual violence that does not involve penetration is still“extremely serious” and can have a devastating effect on the victim (Stuckless (1998) [R v Stuckless (1998), (ON CA),41 OR (3d) 103] at p. 117). This Court has recognized that “any sexual offence is serious” (McDonnell, at para. 29), and has held that“even mild non-consensual touching of a sexual nature can have profound implications for the complainant” (R. v. J.A., 2011 SCC 28,[2011] 2 S.C.R. 440, at para. 63, per McLachlin C.J., and para. 121, per Fish J.).

The modern understanding of sexual offences requiresgreater emphasis on these forms of psychological and emotional harm, rather than only on bodily integrity (R. v. Jarvis, 2019 SCC 10,[2019] 1 S.C.R. 488, at para. 127, per Rowe J.). The decision of the Ontario Court of Appeal in Stuckless (2019) [R v Stuckless, 2019 ONCA 504] provides an example of judicialrecognition that harm to the victim is not dependent on the type of physical activity involved. In that case, the offender digitallypenetrated certain children, sexually touched others, and subjected others to fellatio.

The sentencing judge determined the appropriatesentence for each offence largely by reference to the type of physical act involved. The majority found that the sentencing judge haderred in doing so because the sexual violence was “no less harmful to the victims” simply because it involved sexual touching or fellatiorather than penetration (paras. 68-69, per Huscroft J.A., and paras. 124-25, per Pepall J.A.).

As Pepall J.A. wrote, “if sentencing courtsare to focus on the ‘harm caused to the child by the offender’s conduct’ . . ., distinctions among these forms of sexual abuse may beunhelpful and are not determinative of the seriousness of the offence” (para. 124, quoting Woodward [R v Woodward, 2011 ONCA 610],at para. 76). Specifically, we would strongly caution courts against downgrading the wrongfulness of the offence or the harm to the victim where thesexually violent conduct does not involve penetration, fellatio, or cunnilingus, but instead touching or masturbation.

There is no basis toassume, as some courts appear to have done, that sexual touching without penetration can be (translation) “relatively benign” (see R. v.Caron Barrette, 2018 QCCA 516, 46 C.R. (7th) 400, at paras. 93-94). Some decisions also appear to justify a lower sentence by labelingthe conduct as merely sexual touching without any analysis of the harm to the victim (see Caron Barrette, at paras. 93-94; Hood [R vHood, 2018 NSCA 18], at para. 150; R. v. Iron, 2005 SKCA 84, 269 Sask.R. 51, at para. 12).

Implicit in these decisions is the beliefthat conduct that is unfortunately referred to as “fondling” or (translation) “caressing” is inherently less harmful than other forms ofsexual violence (see Hood, at para. 150; Caron Barrette, at para. 93). This is a myth that must be rejected (Benedet [Janine Benedet“Sentencing for Sexual Offences Against Children and Youth: Mandatory Minimums, Proportionality and Unintended Consequences”(2019) 44 Queen’s LJ 284], at pp. 299 and 314; Wright [Margaret M. Wright, Judicial Decision Making in Child Sexual Abuse Cases(Vancouver: UBC Press, 2007)], at p. 57).

Simply stating that the offence involved sexual touching rather than penetration does notprovide any meaningful insight into the harm that the child suffered from the sexual violence. Third, we would emphasize that courts must recognize the wrongfulness of sexual violence even in cases where the degree of physicalinterference is less pronounced. Of course, increases in the degree of physical interference increase the wrongfulness of the sexualviolence. However, sexual violence against children remains inherently wrongful regardless of the degree of physical interference.

Specifically, courts must recognize the violence and exploitation in any physical interference of a sexual nature with a child, regardlessof whether penetration was involved (see Wright, at p. 150).

Fourth, it is an error to understand the degree of physical interference factor in terms of a type of hierarchy of physical acts. The type of physical act can be a relevant factor to determine the degree of physical interference. However, courts have at times spoken of the degree of physical interference as a type of ladder of physical acts with touching and masturbation at the least wrongful end of the scale, fellatio and cunnilingus in the mid-range, and penile penetration at the most wrongful end of the scale (see R. v. R.W.V. , 2012 BCCA 290 , 323 B.C.A.C. 285, at paras. 19 and 33 ).

This is an error — there is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference. As the Ontario Court of Appeal recognized in Stuckless (2019) , physical acts such as digital penetration and fellatio can be just as serious a violation of the victim’s bodily integrity as penile penetration (paras. 68-69 and 124-25). Similarly, it is an error to assume that an assault that involves touching is inherently less physically intrusive than an assault that involves fellatio, cunnilingus, or penetration.

For instance, depending on the circumstances of the case, touching that is both extensive and intrusive can be equally or even more physically intrusive than

an act of fellatio, cunnilingus, or penetration. Finally, we would recommend that courts cease to use terms such as “fondling” or “caressing” when referring to sexual violence against children. Because sentencing is a communicative process, the language that sentencing judges use matters. Using words like “fondling” or “caressing” in the sentencing context implicitly characterizes the offender’s conduct as erotic or affectionate, instead of as an inherently violent assault, as courts have recognized. Such language is misleading and risks normalizing the very conduct the sentencing judge is meant to condemn.

Use of such language undermines Parliament’s objective of communicating that the use of children as sexual objects for the gratification of adults is wrongful. Instead of acknowledging the harm done to victims, such language re- victimizes victims by disguising and obscuring the violence, pain, and trauma that they experienced (see M. Lessard and S. Zaccour, “Quel genre de droit?

Autopsie du sexisme dans la langue juridique” (2017), 47 R.D.U.S. 227, at pp. 241-42). [ 39 ] On the basis of the Supreme Court of Canada’s reasons in Friesen , I find no error in the trial judge’s finding that the charges the accused was facing were serious. [ 40 ] Finding no error in the trial judge’s reason as to prejudice or the seriousness of the offences, and finding that his conclusion was not unreasonable, I would dismiss the appeal. [ 41 ] However, before concluding these reasons, I wish to say something with respect to the trial judge’s use of a 28-page endorsement, as opposed to written reasons, to explain his disposition of the issue before him. [ 42 ] In July of 2014, the Chief Justice of the Court of Queen’s Bench issued a notice to the profession, Manitoba, Court of Queen’s Bench, Notice to the Profession — Re: Endorsement (July 2014), online: www.manitobacourts.mb.ca/site/assets/files/1152/notice_to_profession_-_endorsements.pdf > dealing with the use of endorsements in rendering decisions.

The notice firstly explains the reasoning behind the use of endorsements in these words: Based on consultations with the profession, a concern raised in the context of some proceedings is that excessive time is spent by the judiciary on the provision of extensive reasons for judgment where, in some instances, a more economic disposition is appropriate. Such a disposition facilitates not only the speed with which the parties get a decision, but the overall speed with which the proceeding then advances. [ 43 ] The notice then proceeds to set out what an endorsement is: Mr.

Justice Archie Campbell has described an endorsement as follows: “An endorsement is a brief judgment that contains only the essence of what is necessary to decide the case, and to show how you got to your decision. An endorsement may be written by hand on the back of the record at the end of argument, it may be typed and attached to the record, it may be dictated orally in court and then transcribed. . . . An endorsement may be written out on the bench or in the retiring room at the conclusion of argument and then read out in court before court adjourns.

Or an “oral endorsement” may be given at the end of the case and then transcribed. An endorsement may be reserved overnight or for a few days. Because speed is one of the great advantages of an endorsement, its utility diminishes in direct proportion to the length of time you reserve it. . . . The basic difference between an endorsement and an extended judgment is this: the endorsement contains only the bare bones of the

decision. The extended written or oral judgment is free-standing. It assumes the reader knows nothing about the case. It contains the factual background, the procedural history, the positions and arguments of the parties, the findings of fact supported by as much reference to the evidence as necessary, and often a lot more. An endorsement is not free-standing. It assumes the reader knows what the case is all about, and assumes the reader is familiar with the issues, the positions of counsel, the procedural history, and the factual background.

It is usually impossible to understand the endorsement without access to some of the papers such as the notice of application, submissions or factums, affidavits, evidence, exhibits and the like.” [ 44 ] In the present case, the use of a 28-page endorsement by the trial judge to provide his decision on the matter offends almost the entirety of the notice to the profession, as to what an endorsement is and in what circumstances it can be used.

Furthermore, I cannot conceive of any situation where a 28-page endorsement could be justified. [ 45 ] An endorsement is not published in the manner that written reasons are, nor is it publicly available as oral reasons, of which a transcript can be ordered. An endorsement is simply appended to the court file and lacks any public circulation, unlike written reasons. It sits there, away from the public’s knowledge, and whatever guidance could be gained from the endorsement is lost to potential litigants, counsel and judges.

There were serious issues involved in this case, which could inform decisions in the future. Publication of decisions permits the common law to evolve, develop and advance. While I appreciate the workload of judges in a busy trial court, a misguided use of an endorsement is of benefit to no one and should be strongly discouraged. JA I agree: JA I agree: JA