R v RDW, 2023 MBCA 62

Citation: R v RDW, 2023 MBCA 62 Date: 20230622 Docket: AR23-30-09943 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : his majesty the king ) S. R. Segal ) for the Appellant Respondent ) ) C. R. Savage - and - ) for the Respondent ) r. D. W. ) Chambers motion heard and ) Decision pronounced: (Accused) Appellant ) June 22, 2023 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the victim(

s) or witness(es) (see

section 486.4 of the Criminal Code ). mainella JA Introduction [ 1 ] The accused applied for leave to appeal his sentence and, if granted, judicial interim release pending determination of his sentence appeal (see sections 679(1) (b), 679(4) of the Criminal Code (the Code )). After hearing from the parties, I denied the application for leave to appeal sentence with reasons to follow. These are those reasons. Background [ 2 ] The accused pleaded guilty to sexual interference, prosecuted by way of indictment (see

section 151 (

a) of the Code ). He was sentenced on June 2, 2023 to one year’s imprisonment, followed by three years’ supervised probation. He filed a notice of application for leave to appeal and a notice of appeal, as amended, asking that his sentence be varied to a conditional sentence of imprisonment. Effective November 17, 2022, Parliament amended the Code to provide judicial discretion to impose such a sentence, in an appropriate case, for a sexual offence committed against a child (see

An Act to amend the Criminal Code and the Controlled Drugs and Substances Act , SC 2022, c 15,

section 14). [ 3 ] The relevant circumstances of the offence are that the victim is the accused’s granddaughter. She is developmentally delayed. The offence occurred over the course of three incidents in the summer of 2018 when she was age 15 and was in the accused’s care. The following events occurred:

i) The accused kissed the victim on her mouth with his tongue. ii) The accused exposed his penis to the victim while undressing. iii) The accused made the victim undress in front of him and touch his penis and asked to touch her vagina. iv) The accused touched the victim’s vagina over her clothes and also touched her breasts.

v) The accused had inappropriate discussions with the victim about condoms. vi) The accused told the victim not to tell anyone or she would be in trouble. [ 4 ] Counsel for the accused described the situation at the sentencing hearing as a “clear . . . breach of trust” that “never should have happened.” [ 5 ] The offence has impacted the physical, mental and emotional health of the victim. According to her victim impact statement, she is fearful of the accused, is embarrassed by what occurred, is distrustful of the police because of the accused’s manipulation, suffers from anxiety and depression, and has had behavioural and performance issues at school.

[ 6 ] The circumstances of the accused are that he is 73 years old and in declining health. He has been married for 52 years and has three children and eight grand/great-grandchildren. He and his wife own and operate a campground. He has been actively involved in his community in a positive way. He has no prior criminal record. He was on judicial interim release for about four years without incident. [ 7 ] According to the accused’s wife, his offence has created a “rift” in their family. Contact with the accused’s older children (and their children) is minimal.

The accused’s wife is supportive of him, as is his daughter who supplied a letter of support at the sentencing of the accused. [ 8 ] Gerry Goertzen, a registered psychotherapist, prepared a report for the sentencing. He estimated the risk of recidivism by the accused for a sexual offence as being “low” given his age, declining health and other personal circumstances, including the support of his wife and daughter. [ 9 ] The Crown requested a sentence of two years’, less one day, imprisonment, followed by three years’ supervised probation.

The accused asked for a conditional sentence of imprisonment of an unspecified length. [ 10 ] In refusing the request for a conditional sentence of imprisonment on the basis of

section 742.1 (

a) of the Code , the judge stated: The direction of the Supreme Court in the Friesen case [ R v Friesen , 2020 SCC 9 ], touched on fulsomely by the Crown is clear relating to how courts view sex offences against children and the assessment of the appropriate sentence relating to them. In my view, imposing a conditional sentence in the circumstances of this case and the circumstances of this offender would be inconsistent with the fundamental principles of sentencing.

I agree with the Crown that a period of incarceration is required to speak to the denunciation and deterrence reflected in the principles I’ve already spoken of in the Criminal Code [ sections 718 , 718.01 , 718.04 , 718.1 , 718.2 and 742.1 ] and those addressed in the Friesen and other decisions. [ 11 ] In imposing one year of imprisonment, plus three years of supervised probation, the judge stated further that, while the Crown’s position was a reasonable one “in other circumstances,” it was, in the particular circumstances of the accused, “excessive.” As she put it: “ I acknowledge that I have an obligation to be as restrained as I can in imposing a sentence, but there are many complicating and aggravating features here .” Discussion [ 12 ] Section 675(1) (

b) of the Code governs an application for leave to appeal sentence: Right of appeal of person convicted 675

(1) A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal (

b) against the sentence passed by the trial court, with leave of the court of appeal or a judge thereof unless that sentence is one fixed by law. [ 13 ] Granting or refusing permission to appeal against a sentence is an exercise of judicial discretion. As Freedman JA explained in R v Amin , 2010 MBCA 15 , the onus is on an appellant to demonstrate that their appeal “presents an arguable case. . . . [T]his means a case with some merit, and some realistic chance of success” (at para 9) (see also R v ERC , 2016 MBCA 74 at para 26 ; and R v Catcheway , 2017 MBCA 87 at para 3 ). Two further observations in Amin are apposite. [ 14 ] First, the threshold set by section 675(1) (

b) of the Code entails a preliminary examination of the merits of the appeal— not a final determination. At the leave stage, an appellant does not have to establish the likely success of their appeal—only a real chance of success. That said, leave may be denied where the ground(

s) of appeal lack sufficient merit (see Amin at para 11 ; and R v Whiteway (BDT) et al , 2015 MBCA 24 at para 50 ). [ 15 ] Second, the discretion as to whether to grant or refuse leave to appeal must be exercised in light of the deferential standard of review that appellate courts must afford to sentencing judges (see Amin at para 10 ). Absent the sentence being demonstrably unfit or arrived at by material error, an appellate court cannot interfere with a sentence (see R v Friesen , 2020 SCC 9 at para 26 ).

Sufficiency of Proposed Grounds of Appeal [ 16 ] While the amended notice of appeal particularizes five grounds of appeal, as well as a sixth unspecified ground, the accused makes essentially three submissions as to why his sentence should be varied. Lack of Explanation for the Offence as an Aggravating Factor [ 17 ] The accused’s conduct in relation to the victim was unexplained. The judge stated in her reasons:

There is no explanation at all for the commission of this offence. And as a consequence nothing to reduce his moral culpability forhaving committed it. I have spoken earlier about [the accused’s] apparent otherwise good background. There is nothing identified in his life history that mighthave impacted him such that he would behave in this way.

And as a consequence, it’s very difficult to consider what would lower whatapparently is a non-existent or low risk when we don’t know why, and there’s no evidence of, why he committed this offence in the firstplace. [18] The accused says that the judge erred in principle by using the lack of explanation for the offence as an aggravatingfactor.

As he put it in his written submission, “while the lack of an explanation may amount to the absence of a mitigating factor, someoffences do not have a rational explanation that can be articulated.” [19] Appellate courts should not parse a judge’s reasons in a search for error; rather, reasons must be read in context and as awhole in light of the issues in dispute (see R v GF, 2021 SCC 20 at para 69). [20] In an appropriate case, the lack of explanation for an offence may be an aggravating factor as it can be suggestive of thedangerousness of an offender (see R v Kravchenko, 2020 MBCA 30 at para 65; and R v Hussein, 2023 ONCA 253 at para 86).

However,that is not what occurred here. When the judge’s reasons are read as a whole and in context, she simply stated that there was noexplanation for the offence grounded in the evidence that could reduce the accused’s moral culpability. That is an accurate statement. [21] It is noteworthy that the Crown did not argue that the absence of an explanation was an aggravating factor in this case.

Moreover, during his sentencing submission, counsel for the accused was asked by the judge to “help [her] understand how this couldhave occurred” with the victim as no explanation for the offence was provided in the report prepared by Goertzen. [22] Counsel for the accused alluded to the fact that the accused had a problem with alcohol but he made it clear that he was“not suggesting [the accused] was intoxicated” when the offence occurred and that he was not arguing that could be a “factor” onsentencing. [23] The judge’s reasons evidence that she correctly stated the record before her.

There is no proper foundation to groundthe accused’s submission of possible material error. I am not persuaded that there is some realistic chance of success to this ground ofappeal. Non-Compliance with

Section 726 of the Code [24]

Section 726 of the Code provides as follows: Offender may speak to sentence 726 Before determining the sentence to be imposed, the court shall ask whether the offender, if present, has anything to say. [25] It is common ground that

section 726 of the Code was not complied with at the sentencing hearing as the judge neverasked the accused if he had anything to say before determining the sentence. [26] Non-compliance with

section 726 of the Code is not reason by itself to vary a sentence on appeal; it must also be shownthat the failure to follow the correct procedure had a real effect on the sentence imposed (see R v Senek (1998), (MBCA), 130 CCC (3d) 473 at para 20 (Man CA); and R v Linklater, 2021 MBCA 65 at para 101). [27] The circumstances in Amin are illustrative. There, in his application for leave to appeal sentence, the accused filedevidence to demonstrate that non-compliance with the requirements of

section 726 of the Code resulted in important informationgermane to his sentence not being provided to the sentencing judge. Also important in Amin is that the accused’s lawyer at thesentencing hearing was not aware of this critical information for a justifiable reason. On that record, an arguable ground of appeal wasfound to have been established (see paras 23-29). The situation here is quite different. [28] The accused was represented by experienced defence counsel who made comprehensive submissions.

Prior to thesentencing, the accused was interviewed by Goertzen who, in addition to a risk assessment, advised the Court in his report of theaccused’s personal circumstances, his remorse and his insight into his offending behaviour. Nothing of significance has come to lightthat the judge was not aware of. In such circumstances, it would be entirely speculative to say compliance with

section 726 of the Codewould have made a difference to the sentence imposed. The judge’s error appears to be nothing more than a harmless and trivialinadvertence. [29] I am not satisfied that there is some realistic chance of success to this ground of appeal. Conditional Sentence Should Have Been Imposed [30] Grounds 1, 2 and 5 of the notice of appeal, as amended, are related. While counsel for the accused conceded in his oralsubmissions that a one-year prison sentence in the circumstances cannot be said to be demonstrably unfit, he argued that a conditionalsentence should have been imposed.

He says that the judge erred in failing to grant a conditional sentence order, she erred in finding thata conditional sentence was not consistent with the fundamental purpose and principles of sentencing set out in

section 718 of the Code,and that she did not give proper weight to the accused’s low risk to reoffend and other mitigating factors. [31] In my view, none of these grounds are arguable. The judge was entitled to form the assessment she did. This was aserious case of a mature offender in a position of trust sexually abusing a vulnerable child. The impacts of the crime are devastating for

the victim and her family. The judge was well aware of the low risk the accused posed going forward, his declining health and the other mitigating factors. She was tasked with the difficult job of weighing the relevant factors. As was her prerogative, she focused on the multitude of aggravating factors. [ 32 ] In R v Lacasse , 2015 SCC 64 , Wagner J (as he then was) stated that “an appellate court may not intervene simply because it would have weighed the relevant factors differently” (at para 49).

The weight to be given to the aggravating or mitigating factors falls squarely within a sentencing judge’s discretion (see para 78). [ 33 ] The judge gave extensive and balanced reasons in light of the relevant circumstances and the sentencing objectives and principles set out in sections 718 to 718.2 of the Code and the guidance given in Friesen as to the proper method of sentencing offenders committing sexual offences against children.

Contrary to the representation of the accused, the judge’s reasons are sufficient when read as a whole and in context. [ 34 ] In my view, the proposed sentence appeal is nothing more than a request for this Court to revisit the discretion of the judge. That is outside the role of an appellate court. As was explained by the Supreme Court of Canada in R v Proulx , 2000 SCC 5 (at para 125 ): Although an appellate court might entertain a different opinion as to what objectives should be pursued and the best way to do so, that difference will generally not constitute an error of law justifying interference.

Further, minor errors in the sequence of application of s. 742.1 may not warrant intervention by appellate courts. Again, I stress that appellate courts should not second-guess sentencing judges unless the sentence imposed is demonstrably unfit. [ 35 ] I am not persuaded that there is a reasonable chance of success as to these three grounds of appeal in light of the deferential standard of review. Disposition [ 36 ] Leave to appeal sentence was denied. Accordingly, the accused’s application for judicial interim release is moot. JA