R. v. C.M.S., 2022 NSSC 166

SUPREME COURT OF Nova Scotia Citation: R. v. C.M.S. , 2022 NSSC 166 Date: 20220520 Docket: CRD- 506022 Registry: Digby Between: Her Majesty the Queen v. C.M.S. SENTENCING DECISION Restriction on Publication: s. 486.4 and s. 486.5 Judge: The Honourable Justice John Bodurtha Heard: Oral Decision: Written Decision: April 11, 2022, in Yarmouth, Nova Scotia May 20, 2022 July 6, 2022 Counsel: Josie McKinney and Chelsea Cottreau, for the Crown Raymond Jacquard, for C.M.S. Order restricting publication - sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

Order restricting publication — victims and witnesses 486.5

(1) Unless an order is made under

section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

By the Court: Introduction [ 1 ] C.M.S. was charged with the following two offences under the Criminal Code : THAT on or between the 1st day of June 2005 and the 1st day of September 2005 at or near Richfield, Digby County, Nova Scotia, did for a sexual purpose touch M.C., a person under the age of fourteen years old, with his hands and mouth, contrary to

Section 151 of the Criminal Code ; and, THAT on or between the 1st day of June 2005 and the 1st day of September 2005 at or near Richfield, Digby County, Nova Scotia, did commit a sexual assault on M.C., contrary to

section 271 of the Criminal Code . [ 2 ] On October 8, 2021, after a five-day trial, a jury found C.M.S. guilty of both offences. [ 3 ] In accordance with the principle of R. v. Kienapple , [1975] 1 SCR 719 , I grant the Crown’s request to enter a judicial stay of proceedings with respect to the s. 271 charge. The s. 151 offence is the only conviction C.M.S. will be sentenced on. [ 4 ] I now must determine what is a fit and proper sentence for C.M.S. Applicable Legislation [ 5 ] From January 1, 2003 to October 31, 2005,

section 151 of the Criminal Code stated as follows: Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of fourteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on

summary conviction. [ 6 ] From January 1, 2003 to November 30, 2007,

section 742.1 of the Criminal Code stated as follows: Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court (

a) imposes a sentence of imprisonment of less than two years, and (

b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under

section 742.3. [ 7 ] There was no mandatory minimum in existence as of the time of the offence and, as a result, a conditional sentence order is available for C.M.S.

Position of the parties [ 8 ] The Crown’s position is that a fit and proper sentence for C.M.S. is: • 24 months custody, followed by 3 years probation with the following conditions pursuant to sections 732.1(2) and 732.1(3) of the Code : • Keep the peace and be of good behaviour; • Appear before the court when required to so by the court; • Notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation; • Upon expiration of the sentence of imprisonment imposed, report to a probation officer within two working days and thereafter, when required by the probation officer and in the manner directed by the probation officer; • Do not communicate, directly or indirectly, with M.C.;

• Do not be within 200m of the premises known as the home, school, or workplace of M.C.; • Do not have in your possession any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive device; • Attend for assessment, counselling, or a program directed by your probation officer; • Attend for assessment and counselling for mental health and violence intervention as directed by your probation officer; and • Participate and cooperate with any assessment, counselling, or program directed by your probation officer. [ 9 ] The Crown and Defence agree to the following ancillary orders: • Sexual Offender Information Registration Act (SOIRA) Order for 20 years (s. 490.013(2)(b)); • Primary-designated offence DNA Order (s. 487.051); • Mandatory Firearms Prohibition Order (s. 109 for 10 years and life); •

Section 743.21 Criminal Code non-communication order with the complainant, M.C, while C.M.S. is serving his custodial sentence; and, •

Section 161 Order including clause (

c) only for a period of 5 years, prohibiting contact with persons under the age of 16 years, except when in the immediate presence or supervision of their parent or guardian and except in relation to his own children. [ 10 ] It is the Defence’s position that an appropriate sentence is a custodial term between the range of 18 months to two years’ less a day to be served in the community pursuant to a Conditional Sentence Order, followed by two years’ probation.

Analysis Circumstances of the offence [ 11 ] Over the period of June 1, 2005 to September 1, 2005, C.M.S., on four occasions, committed sexual acts on M.C. who was under 14 years of age at the time. The following facts are agreed on between the Crown and Defence: • C.M.S. had a relationship with M.C’s mother, A.C, when they were teens. Years later, they ran into each other at the Yarmouth Mall as adults. A short time after running into each other at the mall, A.C. went to stay at C.M.S.’s house located at ### Highway ### in Digby County, Nova Scotia. A.C. brought her two children M.C and N.C with her.

C.M.S. and A.C. resumed their romantic relationship. • M.C was under the age of 14 years when this occurred. She was mostly raised by her grandparents but this was the first summer she spent with her mother. • It is agreed that A.C. and her two children M.C and N.C spent at least three nights at C.M.S.’s home. • C.M.S. showed M.C attention and affection while they were in Richfield. He tried to teach her to play guitar and wrote her a song called “M.’s Seasons”. • The first incident of sexual assault occurred after an evening walk with the entire household.

After the walk, C.M.S. took M.C., alone, to a collapsed building, which was C.M.S.’s former residence. On this occasion C.M.S. kissed M.C.’s neck, stomach and hips. He hinted to her that he wanted her to kiss his neck and bite his ear. • The second incident of sexual assault occurred the following day. C.M.S. took M.C and her brother for a drive. They arrived at a boardwalk near a shoreline with a gazebo type structure. C.M.S. walked up to M.C while she was laying on the dock sunbathing. He stood over her and told her to lower her skirt and he leaned down to kiss M.C on the mouth.

After this, her brother returned from having to pee. • The third incident occurred the Saturday evening following the drive. C.M.S. brought M.C back to the collapsed building. C.M.S. kissed her lips, neck, hips and stomach. He insinuated she should kiss his neck and bite his ear. He then started touching her over her pants and used his hands to play with her hips. He rubbed her vagina over her clothes. • The fourth incident was the Sunday evening and occurred in the yard of C.M.S.’s parents’ residence. C.M.S. took M.C. into a teepee on the property.

While inside the teepee, he kissed her neck, nibbled her ear and French kissed her. He asked her to do the same to him. His erect penis was pressed up against her. He also reached down and unbuttoned her pants and put his hands down her pants and started touching and rubbing her clitoris under her pants. • C.M.S. indicated to M.C after these incidents it was “their secret” and that she was “the best teenager daughter he could have asked for.” Circumstances of the offender Pre-sentence report

[ 12 ] C.M.S. had a pre-sentence report (“PSR”) prepared on February 22, 2022. Although the PSR was fairly positive, C.M.S. did not accept any responsibility for his actions. In discussing M.C., he advised that he does not like to refer to her as a victim but as an accuser. [ 13 ] C.M.S. advised that he shared a great relationship with his parents and has been residing with them as their primary care-giver for the last one and a half years. He has a good relationship with his brother, who continues to be supportive.

Sadly, after the PSR interview and prior to the submission of the PSR, C.M.S.’s father passed away. His mother has significant health issues. [ 14 ] C.M.S. advised that his childhood “…was great and all necessities were provided by both parents.” He reported never witnessing nor being the victim of any form of abuse. C.M.S. has three children, two of whom he has a good relationship with and cares for on a regular basis. He reported using cannabis but has not consumed alcohol in 24 years. [ 15 ] C.M.S. completed his General Equivalency Diploma, (“GED”) in approximately 1995.

He currently receives $200 per month as a Caregiver wage for taking care of his parents. He stated that, “he has no time to work outside of the home as he continues to care full-time for his parents and children.” [ 16 ] C.M.S. is in good physical health and noted that he is an extremely calm person and does not become easily upset. Ms.

Allen, a former partner of C.M.S., provided a positive character reference and stated that “the kids are lucky to have him as a father.” [ 17 ] There is no doubt that C.M.S. has had a lot to deal with mentally, emotionally and financially, since taking on the primary role of caregiver for his elderly, physically challenged parents who both have significant health needs. However, these challenges have little relevance to this sentencing hearing other than as part of the overall picture of his personal circumstances. Criminal Record [ 18 ] C.M.S. has no prior criminal record.

I have been referred to a dated sexual offence from 1996 for which C.M.S. received a conditional discharge. While this is not considered a prior conviction, it is still a relevant consideration in the highly individualized process that is sentencing. [ 19 ] C.M.S. has been on release conditions since approximately August 2019 and there have been no breaches. There is no evidence that C.M.S. has any prior history of non-compliance with court orders. Allocution [ 20 ] C.M.S. declined, as is his right, to address the Court during his sentencing hearing.

Victim Impact Statement [ 21 ] M.C. provided a victim impact statement addressing how the offence has impacted her life. She stated that after the offence she lost her “brightness and innocence, …became withdrawn, developed an eating disorder…rejected [her]self as an Indigenous First Nation…” She associated “having blond hair, being native, and being a small/skinny girl with being targeted.” [ 22 ] M.C. mentioned that she suffers from night terrors, she struggles to say no in romantic relationships, especially in relation to sexually related requests.

As a result she subconsciously chooses partners that take advantage of this. The psychological trauma from the offence has impacted her ability to work and keep employment due to “mental illness and poor work-attendance.” [ 23 ] Out of a distrust she has become apathetic, hopeless and isolated, which has amplified her mental health struggles of major depression and anxiety. She is reluctant to form close attachments out of “paralyzing fear and paranoia.” She is hypervigilant and suspicious of all relationships.

She wrote the biggest emotional impact is “that I now refuse to have children of my own.” When triggered she is “re-experiencing the unresolved horror and trauma from my encounter with the accused.” [ 24 ] I found the victim impact statement clear and moving. I want to say to M.C. that no words I say today can make up for the emotional, psychological and other harms you addressed in your victim impact statement. No punishment can make you whole or address the profound impact the actions of C.M.S. had on you. All children need and deserve a safe space and, sadly, that was not provided to you.

I hope you will be able to rid yourself of any blame or shame regarding this offence. Sadly, that is what child victims suffer long after sexual offences. Please reflect on my words: you are not responsible for what happened, C.M.S. is. The actions of C.M.S. were not acceptable and will not be tolerated, so please do not let them define you. I sincerely hope that my words help you to recover. Sentencing Principles [ 25 ] In imposing an appropriate sentence, I must apply the purpose and principles of sentencing set out in ss. 718 , 718.1 , and 718.2 of the Criminal Code .

These provisions provide me with the general principles and factors I should consider in reaching a just sentence. The purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives outlined in s. 718 of the Criminal Code . [ 26 ]

Section 718 of the Criminal Code reads as follows: Purpose and Principles of Sentencing

Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 27 ] In relation to this case the following relevant sentencing principles in the Criminal Code apply: 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. 718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female – the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [ 28 ]

Section 718.1 of the Criminal Code says that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 29 ]

Section 718.2 requires that I consider specific sentencing principles, including the mitigating or aggravating factors relating to the offence or the offender.

Section 718.2 reads: Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act. shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 30 ] Any sentencing hearing requires a careful consideration of the unique circumstances of the offender and the offence. It requires a balancing of sentencing objectives (see: R. v. Lacasse , 2015 SCC 64 (S.C.C.) at para. 1 ). [ 31 ] Sentencing is not an exact science, and it is incumbent upon the Court to view the circumstances of each offender and the circumstances of the offence.

Denunciation and Deterrence [ 32 ]

Section 718 (

b) of the Criminal Code identifies deterrence as an appropriate objective of sentencing. Where the primary objective of sentencing is deterrence, the sentence must attempt to discourage the individual offender through specific deterrence, as well as to deter other potential offenders from committing a similar offence by way of general deterrence. [ 33 ] C.M.S. must be specifically deterred from committing further sexual abuse against children. These offences occurred in 2005. There is no evidence before the Court of any sexual abuse of children by C.M.S. since then.

Regarding general deterrence, courts must “send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families and communities.”: R. v. Friesen , 2020 SCC 9 , at para. 5 . Individuals must know that the actions of C.M.S. will not be tolerated and will result in incarceration. Rehabilitation [ 34 ] Even in cases requiring that denunciation and deterrence be emphasized, rehabilitation continues to be a relevant objective.

The rehabilitation of offenders continues to be one of the main objectives of Canadian criminal law and it helps the courts impose just and appropriate sentences. ( Lacasse , at para. 4 ). Proportionality [ 35 ]

Section 718.1 reads “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” It requires that a sentence not be more severe than what is just and appropriate given the seriousness of the offence and the moral blameworthiness of C.M.S. The Supreme Court of Canada in Lacasse , described it as: [12] … In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task.

As I mentioned above, sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice. [ 36 ] In Lacasse , the court further explained the principles of proportionality and parity at paras. 53 and 54: 53 This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code , which provides that a sentence must be "proportionate to the gravity of the offence and the degree of responsibility of the offender".

A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2 (

a) and (

b) of the Criminal Code . 54 The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the fundamental principle of proportionality.

This Court explained this as follows in M. (C.A.) : It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime.... Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [para. 92] [ 37 ] In assessing the gravity of the offence in general, and the gravity of C.M.S.’s specific offending behaviour, his moral blameworthiness is high. C.M.S. was in a position of trust.

He was acting, albeit for a brief period of time, as a father figure to M.C. He was entrusted by A.C., a single mother, to be left alone with M.C. on numerous occasions during their stay at C.M.S.’s parent’s residence in Richfield, N.S. The sexual abuse of M.C. by C.M.S. was not an isolated incident – it occurred on four separate occasions. The combination of these factors demonstrates his moral blameworthiness is high. [ 38 ] Sexual assaults against children are abhorrent and will not be tolerated in our society.

Any sentence I impose must denounce this unlawful conduct and address general and specific deterrence. Aggravating and Mitigating Factors A. Aggravating • The abuse of a child (s.718.2(a)(ii.1)) • There was a breach of the position of trust in relation to the victim ( s.718.2 (a)(iii)) • The victim’s vulnerabilities due to her family circumstances and Indigeneity (Indigenous women are particularly marginalized in society and more likely to be targets of sexual offending as a result) • Repetitive and grooming nature of the incidents. B. Mitigating Factors

• No prior criminal convictions. [39] The Crown alleges that C.M.S. was in a position of trust with the complainant as a “father figure”. The Defence denies C.M.S.was in a position of trust. The Defence argues that C.M.S. had a “weekend fling” with the complainant’s mother after reconnecting forthe first time since they were teenagers. [40] The evidence supports a finding that C.M.S. was in a position of trust. He was an adult who was entrusted with the care ofM.C., a child, numerous times over the course of her stay at his parent’s residence.

C.M.S. was in a position of trust to the point wherehe, an adult, was able to venture alone from the residence with M.C., a child. The two of them were frequently alone as a result. Hereferred to M.C. as his teenaged daughter. Parity/Range of Sentence [41]

Section 718.2 requires consideration of the principle of parity. Within reason, a sentence should be similar to sentencesimposed on similar offenders for similar offences committed in similar circumstances. This requires an examination of the range ofsentences imposed for each of the offences, taking into consideration that each sentence must reflect the unique circumstances of theoffence and the offender. [42] Judge Buckle spoke about sentencing ranges in Rushton, supra, at paragraphs 87 and 88: 87 Sentencing ranges are important.

They are intended to encourage greater consistency between sentences and respect for the principleof parity. However, "they are guidelines rather than hard and fast rules" (R. v. Nasogaluak, 2010 SCC 6 (S.C.C.) at para. 44). This wasrecognized by Scanlan, J.A. in Oickle (supra) at para. 40 when he said "it is not appropriate to set a bottom range or a top range for aparticular offence without regard for the offender or other sentencing principles". He went on to quote Justice Farrar in R. v. Phinn, 2015NSCA 27 (N.S. C.A.) where he refers to R. v. N. (A.), 2011 NSCA 21 (N.S.

C.A.): [34] Unless expressed in the Code, there is no universal range with fixed boundaries for all instances of an offence: [Authoritiesomitted]. The range moves sympathetically with the circumstances, and is proportionate to the Code's sentencing principles that includefundamentally the offence's gravity and the offender's culpability. ... 88 Sentencing judges are permitted to go outside the established range for a given offence as long as the sentence imposed is a lawfulsentence that adequately reflects the principles and purposes of sentencing (Nasogaluak (supra), at para. 44).

This was recently affirmedby the Supreme Court of Canada in Lacasse (supra), where Wagner, J., writing for the majority, said as follows: 58 There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself adesirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot bedisregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purelymathematical calculation.

It involves a variety of factors that are difficult to define with precision. This is why it may happen that asentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is notdemonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specificcircumstances of each case. ... [43] I have reviewed and considered the authorities provided to me.

I will address some of these in more detail to determine a fitand proper sentence. [44] Friesen clarified the law when sentencing individuals convicted of sexual crimes against children: [101] Parliament's decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01of the Criminal Code confirms the need for courts to impose more severe sanctions for sexual offences against children.

In cases thatinvolve the abuse of a person under the age of 18, s. 718.01 requires the court to give "primary consideration to the objectives ofdenunciation and deterrence of such conduct" when imposing sentence. ... [105] Parliament's choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to thewrongfulness of these offences and the serious harm they cause. The sentencing objective of denunciation embodies the communicativeand educative role of law (R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 102).

It reflects the fact that Canadian criminal law is a"system of values". A sentence that expresses denunciation thus condemns the offender "for encroaching on our society's basic code ofvalues"; it "instills the basic set of communal values shared by all Canadians" (M. (C.A.), at para. 81). The protection of children is oneof the most basic values of Canadian society (L. (J.-J.), at p. 250; Rayo, at para. 104).

As L'Heureux-Dubé J. reasoned in L.F.W., "sexualassault of a child is a crime that is abhorrent to Canadian society and society's condemnation of those who commit such offences must becommunicated in the clearest of terms" (para. 31, quoting L.F.W. (C.A.), at para. 117, per Cameron J.A.). 106 We would decline the Crown's invitation to create a national starting point or sentencing range for sexual offences againstchildren. Generally speaking, this Court is reluctant to pronounce on the specific length of sentence.

The appropriate length and thesetting of sentencing ranges or starting points are best left to provincial appellate courts (R. v. Gardiner, (SCC), [1982] 2S.C.R. 368 (S.C.C.), at pp. 396 and 404). These courts "are in the best position to know the particular circumstances in theirjurisdictions" (Lacasse, at para. 95). Indeed, a degree of regional variation for sentences is legitimate (M. (C.A.), at para. 92).

We wouldnonetheless emphasize that the guidance we provide about Parliament's legislative initiatives and the contemporary understanding of thewrongfulness and harmfulness of sexual violence against children applies across Canada.

107 We are determined to ensure that sentences for sexual offences against children correspond to Parliament's legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes. To do so, we wish to provide guidance to courts on three specific points:

(1) Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence;

(2) Sexual offences against children should generally be punished more severely than sexual offences against adults; and,

(3) Sexual interference with a child should not be treated as less serious than sexual assault of a child. [ 45 ] Friesen did not set specific ranges but said that mid-single digit penitentiary terms for sexual offences against children should be the new “norm” and that upper single digit and double digit penitentiary terms should not be unusual or reserved for exceptional circumstances (see para. 114). [ 46 ] The Supreme Court stated courts should generally impose higher sentences in cases that preceded the increases in maximum sentences in order to give effect to parliaments “clear and repeated signals to increase sentences for those offences”. (see para. 100) [ 47 ] A non-exhaustive list of factors to be considered in determining a fit sentence for sexual offences against children was outlined at paras. 121-137: (

a) likelihood to re-offend, (

b) abuse of a position of trust, (

c) duration and frequency of the abuse, (

d) age of the victim, and (

e) the degree of physical interference (noting that the severity should not be downgraded because of the wrongfulness of a sexual assault which does not involve penetration or oral sex). [ 48 ] In Friesen , the Court noted that a breach of trust by the offender likely increases harm to the victim. The breach of trust is also aggravating because it increases the degree of responsibility of the offender (see paras. 126-129).

The Court also indicated that the frequency of the acts of sexual abuse increases the harm to the victim and is reflective of a higher moral blameworthiness of the offender because it increases the seriousness of the offender’s conduct (see paras. 131-133). [ 49 ] It is well known, and identified in Friesen , that children may never overcome the psychological and emotional harm caused by sexual abuse after they reach adulthood.

The case also recognized it is often impossible to determine the impact on a child victim. [ 50 ] M.C. is an adult at the time of sentencing, but she was a child when these offences occurred. [ 51 ] The Court in Friesen also noted that sexual violence has a disproportionate impact on girls and young women – as sexual violence is highly gendered. The Court also noted that sexual offences against children disproportionately impact many groups that are already vulnerable, such as Indigenous people.

These factors need to be taken into account in this case, as M.C. was a young, Indigenous female at the time these offences were committed against her. [ 52 ] I reference as well an excerpt from the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls which speaks to the vulnerability of this group: Despite these gaps in data collection, organizations working to advocate on behalf of sex worker rights, and those working to address sexual exploitation and trafficking, consistently report that Indigenous women, girls, and 2SLGBTQQIA people make up the majority of those involved in the street-level sex work.

They are also more likely than other groups to be targeted for, or to experience, sexual exploitation or trafficking for the purposes of sexual exploitation. Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, V1a-1, p. 656: https://www.mmiwg- ffada.ca/final-report/ [ 53 ] While the Supreme Court addressed several considerations of the impact of sexual abuse on children, the Court identified that protecting children “is one of the most fundamental values of Canadian society.

Sexual violence against children is especially wrongful because it turns this value on its head.” (see para 65). [ 54 ] Friesen and

section 718.01 of the Criminal Code demand that I give primary consideration to denunciation and deterrence when it comes to sentencing C.M.S. [ 55 ] In R. v. R.A ., 2022 ONSC 1161 , the accused was convicted of two counts of sexual interference contrary to s. 151 of the Criminal Code . The victim was his stepdaughter. The accused on one occasion started hugging and kissing the victim using his tongue. He kissed her on the lips and put his hands down her pyjama shorts. He touched her vagina on the “inside”. This incident lasted around ten seconds and the victim immediately texted her mother.

The accused had kissed her twice earlier on the lips when she was alone with him in the car; once at a grocery store, and once at a pet store. The sexual touching came to the attention of authorities when the victim’s teacher saw cuts on her arms. She told her teacher that her step-father touched her. [ 56 ] The accused in that case was 41. He immigrated to Canada with the victim and her mother in April 2017 and had no criminal record. In the pre-sentence report, he continued to vehemently deny that he committed the offences.

He was sentenced to 6 months jail on count 1, dealing with kissing, and sentenced to 2 years jail on count 2, to be served concurrently to count 1, followed by 3 years probation.

[ 57 ] In R. v. Jason T. Smith , 2021 NSPC (unreported, August 25, 2021 in Dartmouth 5, Judge Tax), the accused touched a 9 year- old child on her vagina under her clothing. There was no evidence of penetration. The neighbour was the father of a boy who had been playing with the victim in the backyard of his apartment building. The accused touched the victim when his son left to gather sticks for a campfire. The touching lasted only a second and the victim stopped Smith and ran home. The accused was convicted after trial of s. 151 ( s. 271 stayed due to Kienapple ).

The Crown sought 18 months in jail, defence sought 90 days. The accused had no prior criminal record. Judge Tax ordered 135 days jail (4.5 months) and 2 years’ probation. [ 58 ] In R. v. S.P.W. , 2021 NSPC 24 , the accused was the biological father of the victim. The sexual assaults took place when the victim was between 4-6 years old. The contact involved progressive touching. There was no penetration although it was attempted, including placing the accused’s penis in vaginal and anal areas.

The accused entered guilty pleas to three offences of a sexual nature on the day of the trial. [ 59 ] In S.P.W. , the accused was 42 years old at the time of sentencing and had a limited unrelated record. He was sentenced to 56 months of imprisonment for the

section 151 offence, 56 months concurrent for the

section 152 Criminal Code offence, 30 days concurrent for a failure to attend court charge. [ 60 ] In R. v. C.A.L. , 2021 NSSC 365 , the accused was convicted following trial for offences contrary to sections 151 and 271 of the Criminal Code . The facts involved repeated touching and kissing including touching her vagina under the clothes. The victim was 9 years old and the accused was in his mid-thirties when the sexual abuse began. It lasted until the victim was 12 years of age. C.A.L never accepted responsibility. He was sentenced to 3.5 years in jail. [ 61 ] In R. v. E.F. , 2021 ABQB 639 , the 50 year old accused was convicted after a jury trial in relation to a charge contrary to

section 151 of the Criminal Code . It involved a single incident. The victim was the accused’s daughter. When the victim was 14 years old, the accused pinned the victim’s hands above her head as she was lying on her back on a couch, lifted her shirt (the victim was not wearing a bra), and touched the victim’s breasts and squeezed her nipples for approximately one minute. The accused had a dated and unrelated criminal record. He was sentenced to 2 years’ jail. [ 62 ] In R. v. C.D.C. , 2021 NSSC 287 , the accused was a close friend of the victim's family.

When the victim was having a sleepover at the accused’s house, he sexually assaulted her by masturbating over her and touching her. The accused was convicted after trial and sentenced to 22 months' incarceration. The victim's age was a significant aggravating factor, and the sexual assault was of a highly degrading nature and by someone the victim's family knew and therefore was in a position of trust. There was also some grooming behaviour. The accused had a limited unrelated criminal record and suffered from a heart condition. At the time of sentencing, he was taking care of his father. [ 63 ] In R. v.

Hughes , 2020 NSSC 376 , the accused had repeated sexual contact with an Indigenous victim, including anal sex and oral sex. The accused was in his early to mid-60s during the relevant period of time and was in a position of trust. The accused had a dated but prior record for sex offences. The acts occurred when the complainant was between 7 and 11 years old. The accused was sentenced to 6 years in custody. [ 64 ] The Defence relied on a number of cases that were decided prior to Friesen .

These cases are of no assistance in determining parity because they are inconsistent with the directions and principles laid out in Friesen . Defence counsel did rely on R. v. Scott , 2021 NSPC 42 , a post- Friesen decision where the accused received a conditional sentence of six months after he pled guilty to two counts of sexual assault on twin boys, J. and D., aged 13 or 14 years old. In this case, the accused met the boys at a convenience store and asked them to go for a walk. They were strangers to the accused.

The accused then proceeded to hug and touch J's buttocks approximately three times and afterwards started to rub his own penis through his pants. The accused attempted to hug D. before he pulled away, and he touched D.'s buttocks. At the time of the offences, a mandatory minimum was in effect, however, in sentencing the accused to a conditional sentence order, the court determined that the mandatory minimum was representative of cruel and unusual punishment and would be grossly disproportionate.

In sentencing the accused, Judge Burrill reviewed and considered the factors under Friesen and stated at para. 30 : …an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders, with particular attention to Aboriginal offenders. Mr. Scott identifies as Aboriginal and African Nova Scotian in this case.

The latter issue is informed by the decision of our Court of Appeal in R. v. Anderson , 2021 NSCA 62 , which this Court considers as well. [ 65 ] I find that there are many factors which distinguish Scott from C.M.S.’s situation, namely: • In Scott , the Crown proceeded by way of

summary conviction. • Mr. Scott entered a guilty plea, which is a significant mitigating factor in cases of sexual assault as it saves victims from having to retraumatize themselves through testimony. • Mr. Scott was in his mid-70’s and had a significant intellectual/cognitive impairment. He lived with his family his whole life, with his brother having a power of attorney to manage his affairs. His condition was deteriorating. His cognitive function may have caused him to misinterpret cues that he was receiving during the interaction that he was having with the victims.

His moral culpability for the offences was diminished. • Mr. Scott was not in a position of trust. • Mr. Scott underwent a comprehensive risk assessment through the Forensic Sexual Behavior Program and a detailed report was prepared for sentencing.

Restraint and Totality [ 66 ]

Section 718.2 requires that I consider the principles of restraint and totality. The principle of restraint is that the punishment should be the least that would be appropriate in the circumstances. There is no need for me to consider the principle of totality because C.M.S. is being sentenced on only one offence. Conclusion [ 67 ] C.M.S. is being sentenced for the offence of sexual interference,

section 151 under the Criminal Code . This is a serious offence committed against a young, female, Indigenous child, of whom C.M.S. was in a position of trust. This was not a single incident. The sexual abuse took place on four occasions. It is incumbent upon the Court to send a strong message of deterrence and denunciation for such conduct and to hold C.M.S. fully accountable for his actions, which have far-reaching consequences for M.C. [ 68 ] A sentence of 24 months’ imprisonment followed by three years’ probation provides the criminal justice system with control over C.M.S. for 5 years.

It satisfies the need for general and specific deterrence, and the need for denunciation. It also provides an opportunity to rehabilitate and reform C.M.S. (see R. v.

Burton , 2017 NSSC 181 , at para. 28 ). [ 69 ] This sentence addresses the purposes and principles of sentencing, and the principles enunciated by the Supreme Court of Canada in Friesen related to sexual offences against children. [ 70 ] On the charge that C.M.S. on or between the 1st day of June 2005 and the 1st day of September 2005 at or near Richfield, Digby County, Nova Scotia, did for a sexual purpose touch M.C., a person under the age of fourteen years old, with his hands and mouth, contrary to

Section 151 of the Criminal Code , I find that the sentence proposed by the Crown is appropriate and sentence C.M.S. to 24 months’ imprisonment to be followed by 3 years’ probation including the conditions, referenced above pursuant to sections 732.1(2) and 732.1(3) of the Criminal Code . Additionally, I order the ancillary orders referenced above. Bodurtha, J.