R v Debler, 2022 MBCA 15

Citation: R v Debler, 2022 MBCA 15 Date: 20220209 Docket: AR21-30-09628 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Jennifer A. Pfuetzner Madam Justice Janice L. leMaistre BETWEEN : HER MAJESTY THE QUEEN ) T. P. Sandulak ) for the Appellant ) Respondent ) R. N.

Malaviya ) for the Respondent - and - ) ) Appeal heard and BRIAN BERWYNE DEBLER ) Decision pronounced: ) February 1, 2022 ) (Accused) Appellant ) Written reasons: ) February 9, 2022 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , this appeal was heard remotely by videoconference. LEMAISTRE JA (for the Court) : [ 1 ] The accused entered guilty pleas to one count of sexual exploitation contrary to

section 153 of the Criminal Code (the Code ) and one count of sexual interference contrary to

section 151 of the Code . [ 2 ] The judge imposed consecutive four-year sentences of imprisonment for each offence. After considering the principle of totality, she reduced each sentence to three and one-half years, for a total sentence of seven years’ imprisonment. [ 3 ] The accused appeals his conviction for sexual exploitation. He also seeks leave to appeal and, if granted, appeals his sentence. At the appeal hearing, we allowed the accused’s conviction appeal and denied his application for leave to appeal sentence with reasons to follow.

These are those reasons. [ 4 ] The accused appeals his conviction for sexual exploitation on the basis that a guilty plea to that offence was not available because the victim was between 11 and 12 years old when he engaged in sexual acts with her. He seeks, and the Crown consents, to have the conviction for sexual exploitation set aside and a conviction for invitation to sexual touching pursuant to

section 152 of the Code entered in its place (count 2 on the information). [ 5 ] We agree that the offence of sexual exploitation applies only to a victim who is “ 16 years of age or more but under the age of eighteen years” (the Code at section 153(2) ).

Accordingly, the conviction appeal was allowed and a conviction for invitation to sexual touching was substituted for the conviction for sexual exploitation. [ 6 ] On his sentence appeal, the accused argues that the judge erred in principle by (1) finding that the accused lacked insight or remorse, (2) improperly using the collateral consequences, and (3) giving insufficient weight to the principle of restraint. He asserts that the sentence is demonstrably unfit. [ 7 ] In our view, the judge’s findings that the accused had “little insight into the impact on his victim[s]”, “no insight into

the wrongfulness of his action[s]” and was not “particularly remorseful” are amply supported by the record. Despite her concern that the accused’s remorse was not genuine, the judge gave the accused “considerable credit” for his guilty pleas and appreciated their significance. [ 8 ] The judge acknowledged the collateral consequences and repeatedly referred to the principle of restraint.

We are satisfied that her use of those consequences and her application of the principle of restraint were reasonable (see R v Lacasse , 2015 SCC 64 at para 49 ). [ 9 ] Finally, we agree with the Crown’s assertion that the sentences imposed by the judge were well within the appropriate range for the sexual abuse of two vulnerable Indigenous children under the accused’s care and were consistent with the guidance provided in R v Friesen , 2020 SCC 9 . [ 10 ] In our view, there is no arguable case to be made that the judge erred in principle or that the sentence is demonstrably unfit.

Therefore, leave to appeal sentence was denied. JA JA JA