R v T.F., 2019 SKCA 82

Court of Appeal for Saskatchewan Docket: CACR3177 Citation: R v T.F. , 2019 SKCA 82 Date: 2019-08-29 Between: T.F. Appellant And Her Majesty the Queen Respondent Before: Jackson, Barrington-Foote and Kalmakoff JJ.A. Disposition: Appeal allowed in part Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Barrington-Foote On Appeal From: Provincial Court, Saskatoon Appeal Heard: June 6, 2019 Counsel: Patrick M. McDougall for the Appellant Pouria T. Tabrizi-Reardigan for the Respondent Kalmakoff J.A. I.

Introduction [ 1 ] The appellant, T.F. pled guilty to two counts of sexual assault, contrary to s. 271 of the Criminal Code , and two counts of sexual interference, contrary to s. 151 . The victims were his daughters; one an infant, the other a toddler.

The offences involved repeated and highly intrusive conduct, which went on for more than a year. [ 2 ] A Provincial Court judge sentenced the appellant to a total term of imprisonment of six years, and made a number of ancillary orders, including an order under s. 161 of the Criminal Code , prohibiting the appellant from various forms of contact with children for an additional five years following his release from prison. He was also ordered to pay victim fine surcharges totalling $800.00. [ 3 ] The appellant appeals his sentence.

For reasons that follow, I would not interfere with the term of imprisonment imposed by the sentencing judge. I would allow the appeal only to the extent of varying the conditions of the s. 161 order and cancelling the surcharges. II. BACKGROUND A. The offences [ 4 ] The victims in this case, A.B. and C.D., came into the appellant’s home as foster children. At the time, the appellant and his wife had two older children living with them. [ 5 ] The appellant and his wife adopted A.B. and C.D.

The adoption was formalized in the summer of 2017. [ 6 ] On May 10, 2018, A.B. disclosed to the appellant’s wife that “Daddy likes to lick my bum and I lick daddy’s bum”. A.B. also said that “Daddy” put his “bum” in her mouth, by which she meant his penis. Upon receiving this information, the appellant’s wife confronted him. Initially, he denied the allegation, but later confessed to her that it was true. [ 7 ] Four days later, the appellant attended the local RCMP detachment, and gave a statement to the police. It was a full confession that went well beyond what A.B. disclosed to the appellant’s wife.

The appellant also admitted to the offences he committed against C.D. He provided information that would not have become known, absent his confession. [ 8 ] The appellant admitted that he sexually abused the victims on approximately 20 to 30 occasions over a period of 16 months. He said the younger child, C.D., was less than a year old when the offending began. The older child, A.B., was two years old when the offending began, and three years of age in May of 2018. The assaults progressed from fondling to more intrusive and serious violations of the victims’ sexual integrity.

The appellant’s offences would be considered major sexual assaults, regardless of the ages of the victims. [ 9 ] The appellant also confirmed the details of the assaults in an apology letter he wrote to his wife, including those contained in the disclosure made by A.B. He also admitted that his offending conduct continued until the day before A.B. complained to his wife. B. The offender [ 10 ] The appellant was 43 years old at the time of his arrest. He had no criminal record and was employed as a nurse supervisor at a large hospital.

He lost his job once he was arrested. [ 11 ] The appellant grew up in a home where both of his parents were alcoholics. He was subjected to physical and emotional abuse.

He was sexually abused by an uncle when he was very young, perhaps 3 or 4 years of age. He said that his mother was aware of the sexual abuse but did not report it to the authorities. The appellant said he was also sexually abused by his mother and, later, his older brother. [ 12 ] A pre-sentence report prepared for the appellant’s sentencing assessed him as presenting a low risk for re-offending generally, and a “below average” risk for re-offending sexually. [ 13 ] The appellant pled guilty to the offences at an early opportunity, without requesting a preliminary inquiry or trial.

When given the opportunity to speak at his sentencing hearing, the appellant took responsibility for his actions, apologized to his wife and the victims, and expressed a commitment to undergo treatment. III. the decision UNDER APPEAL [ 14 ] At the sentencing hearing, the Crown sought a sentence of six years’ imprisonment for the appellant, inviting the sentencing judge to impose a four-year sentence in relation to the offences committed against A.B., and two years consecutive in relation to the offences committed against C.D.

In doing so, the Crown cited the nature of the offences, the age of the victims, the position of trust occupied by the appellant, and the number of instances to which the appellant admitted. The Crown also sought a number of ancillary orders, including: (

i) a firearms prohibition order under s. 109 of the Criminal Code ; (ii) an order pursuant to s. 490.012 requiring the appellant comply with the provisions of the Sex Offender Information Registration Act , SC 2004, c 10 [ SOIRA ], for life; (iii) an order authorizing the taking of a DNA sample, pursuant to s. 487.051; and (iv) an order under s. 161 of the Criminal Code , prohibiting the appellant from attending certain places or having certain types of contact with children. [ 15 ] The appellant argued that a three-year total sentence would be appropriate, citing his deep remorse, what he described as a sexual/pornography addiction, and the need for treatment.

He also invited the sentencing judge to take into account, as a mitigating factor, the sexual abuse that he suffered as a child. He opposed the imposition of an order under s. 161 , arguing that it was unnecessary, in light of the lack of “public threat” he posed, and the fact that he would be subject to the SOIRA order for life. [ 16 ] The sentencing judge imposed a total sentence of six years’ imprisonment in relation to the four offences for which the appellant offered guilty pleas, and granted the ancillary orders sought by the Crown.

The terms of imprisonment were distributed as follows: Count 1: s. 271 – sexual assault on A.B. – 3 years Count 2: s. 271 – sexual assault on C.D. – 3 years consecutive Count 3: s. 151 – touch A.B. for a sexual purpose – 3 years concurrent Count 4: s. 151 – touch C.D. for a sexual purpose – 3 years concurrent to Count 2 [ 17 ] The sentencing judge gave the appellant credit for 167 days in relation to pre-sentence custody, leaving a total sentence of 5 years and 198 days going forward.

He also imposed the DNA sample order, a ten-year firearms prohibition order and a lifetime SOIRA order. [ 18 ] In addition, the sentencing judge made an order under s. 161 for a period of five years following the appellant’s release from custody. This order prohibits the appellant, in words that echo those contained in ss. 161(1) (a), (

b) and (

c) of the Criminal Code , from attending certain places where children may be expected to be present (playgrounds, daycare centres, swimming areas, etc.), seeking or holding employment that involves being in a position of trust towards children, and having unsupervised contact with children under the age of 16. IV. THE STANDARD OF REVIEW [ 19 ] Sentence appeals invite a deferential standard of review. In R v Lacasse , 2015 SCC 64 , [2015] 3 SCR 1089 [ Lacasse ], the Supreme Court of Canada held that an appellate court can only interfere with a sentence in one of two situations: (

i) where the sentence imposed by the sentencing judge is demonstrably unfit; or (ii) where the sentencing judge commits an error in principle, fails to consider a relevant factor, or gives erroneous consideration to an aggravating or mitigating factor, and such an error has an impact on the sentence imposed (see also R v Kaiswatum , 2019 SKCA 7 , [2019] 5 WWR 669; R v Lemaigre , 2018 SKCA 47 ; R v Johnson , 2018 SKCA 28 , [2018] 6 WWR 725; R v L.V. , 2016 SKCA 74 , [2017] 1 WWR 439 [ L.V. ]). [ 20 ] If interference with the sentence is justified on either basis, the appellate court may set aside the sentence and conduct its own analysis to determine a fit sentence in the circumstances: R v Suter , 2018 SCC 34 , [2018] 2 SCR 496.

V. ARGUMENTS ON APPEAL [ 21 ] The appellant argues that the sentencing judge erred in a number of ways in this case, including: (

a) imposing a sentence that was demonstrably unfit; (

b) improperly characterizing the sexual abuse that the appellant suffered as a child as both a mitigating and aggravating factor; (

c) overemphasizing the aggravating factors, and paying inadequate attention to the mitigating factors;

(

d) failing to properly apply the principle of totality; and (

e) imposing an order under s. 161 in the absence of evidence that he posed a risk to reoffend. [22] The appellant also argues that the conduct of the sentencing judge during the hearing, and the resulting decision, gave rise to areasonable apprehension of bias and, as such, this Court ought to intervene and impose a fit sentence. [23] The Crown, in response, contends that the overall sentence was fit, in light of the significant gravity of the offences, and thehigh degree of the appellant’s moral culpability.

It argues that the sentencing judge made no error in principle, but if he did, any such errorhad no impact on the sentence. The Crown also argues that the record discloses no evidence of bias – actual or reasonably apprehended –on the part of the sentencing judge. VI. analysiS [24] Given the manner in which the parties have framed their arguments on this appeal, there are five questions to be addressed.They are: (

a) Was there a reasonable apprehension of bias? (

b) Did the sentencing judge err in principle, fail to consider a relevant factor, or give erroneous consideration to an aggravating ormitigating factor? (

c) If so, do(es) the identified error(

s) justify intervention? (

d) Was the sentence demonstrably unfit? (

e) Did the sentencing judge err in making the order under s. 161 of the Criminal Code? [25] I will address each of these questions in turn. A. Was there a reasonable apprehension of bias? [26] The appellant argues that the sentencing judge’s conduct throughout the proceedings, and the decision itself, gave rise to areasonable apprehension of bias. As a result, he says, this Court should set aside the original sentence, and intervene to impose a fitsentence. [27] I find no merit to this ground of appeal. [28] The conduct on the part of the sentencing judge which the appellant says creates a reasonable apprehension of bias includes thefollowing: (

a) seizing himself with the case even though there was no need to do so; (

b) being “unnecessarily and aggressively” dismissive of both the Crown and defence during the sentencing proceedings; (

c) erroneously considering the appellant’s past victimization as both a mitigating and aggravating factor; and (

d) imposing a harsh sentence, along with an “unnecessary” order under s. 161 of the Criminal Code. [29] One of the fundamental principles upon which our justice system operates is that justice should not only be done, but shouldmanifestly and undoubtedly be seen to be done: R v Sussex Justices, Ex parte McCarthy, [1924] 1 KB 256 at 259.

Public confidence in ourjustice system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice, and mustbe perceived to do so: Wewaykum Indian Band v Canada, 2003 SCC 45 at para 57, [2003] 2 SCR 259 [Wewaykum]. [30] In order to have any legal significance, an apprehension of bias must be reasonable, held by reasonable and right-mindedpersons applying themselves to the question and obtaining the required information about it.

The test is “what would an informed person,viewing the matter realistically and practically – and having thought the matter through – conclude”: Committee for Justice and Liberty vCanada (National Energy Board) (1976), (SCC), [1978] 1 SCR 369 at 394; Wewaykum at para 60; see also R v Nero, 2016ONCA 160 at para 29, 334 CCC (3d) 148. [31] Trial judges benefit from a presumption of integrity, which in turn encompasses the notion of impartiality: R v Teskey, 2007SCC 25 at para 19, [2007] 2 SCR 267.

In order to have any legal impact, an apprehension of bias in respect of a trial judge must bereasonable, and the grounds must be serious and substantial. Real likelihood or probability of bias is necessary; a mere suspicion is notenough: Aalbers v Aalbers, 2013 SKCA 64, 417 Sask R 69. [32] The threshold for a successful allegation of perceived judicial bias is high.

There is a strong presumption that judges will carryout their oath of office, and this presumption can only be displaced by cogent evidence that demonstrates the judge has done somethingwhich gives rise to a reasonable apprehension of bias: R v S.(R.D.), (SCC), [1997] 3 SCR 484 at para 117. [33] In my view, there is nothing in the record that raises even a hint of bias on the part of the sentencing judge in this case, let alonecogent evidence. The mere fact that a sentencing judge may have made legal errors does not give rise to an apprehension of bias.

Nor, inthis case, is the specter of bias raised by the fact that the sentencing judge seized himself with the case at an early appearance.

[34] The record shows that, on June 4, 2018, the appellant entered guilty pleas before another judge, and a pre-sentence report wasordered. However, on that day, no facts were heard, no submissions were made, and no plea inquiry was conducted. [35] When the matter came before the sentencing judge on the next appearance, June 29, 2018, it is apparent from the record thateveryone expected that the sentencing hearing would proceed. However, the appellant told the sentencing judge that he wished todischarge his Legal Aid lawyer, and sought an adjournment in order to retain new counsel.

The appellant explained why he had concernsabout the representation he had received, and that he felt his lawyer was not adequately prepared for the sentencing hearing.

Theappellant’s lawyer also addressed the court, saying that she was prepared to remain on record, if the appellant wished her to, but alsosaying she would need an adjournment to properly prepare, as she had received the pre-sentence report only a short time prior, and had notbeen able to fully review it with the appellant. [36] The sentencing judge then explained the appellant’s options to him, which included hiring private counsel, continuing to workwith Legal Aid, or proceeding without counsel.

After taking an adjournment to consider the matter, the appellant indicated that he nolonger wished to discharge his lawyer, but wanted to adjourn the sentencing hearing, so that his lawyer could properly review the pre-sentence report and prepare for the hearing. [37] The Crown did not object to the appellant’s request for an adjournment. The sentencing judge acknowledged that theappellant’s request appeared to be legitimate, granted the adjournment, and ordered that the matter proceed before him.

In doing so, hecited the fact that a certain amount of effort had already been put into arranging a hearing before him on June 29, 2018, including bringingin staff, and opening a courtroom that would not normally be open. [38] Given the nature of the case, the nature of the discussions that took place before the sentencing judge on June 29, 2018, and thescheduling issues at play, it is apparent why the sentencing judge thought the case would benefit from judicial continuity.

In light of that,there is nothing in the record to suggest that the sentencing judge seized himself with this matter for any improper purpose, nor any otherevidence of bias. [39] While the sentencing judge was at times abrupt with counsel, asked pointed questions, and at one point offered a suggestionthat the Crown’s sentencing submissions could have been better organized, this is not cogent evidence giving rise to a reasonableapprehension of bias.

In my view, a reasonable person viewing the matter realistically and practically – and having thought the matterthrough – would not believe there was bias in the circumstances of this case. [40] In the result, this ground of appeal must fail. B. Did the sentencing judge err in principle, fail to consider a relevant factor,or give erroneous consideration to an aggravating or mitigating factor? [41] In connection with this aspect of the appeal, the appellant argues that the sentencing judge committed three key errors.

First, hesays the sentencing judge failed to give adequate consideration to the mitigating effect of his confession and early guilty plea, especially inlight of the fact that the Crown’s case against him rested almost entirely on that confession. Second, he says the sentencing judge erred byimproperly characterizing the sexual abuse that the appellant suffered as a child as both a mitigating and aggravating factor. Third, he saysthe sentencing judge failed to properly apply the principle of totality. [42] I turn now to each of those arguments. 1.

The sentencing judge erred by failing to give the appellant’s confession and guilty plea separateconsideration as mitigating factors [43] Shortly after A.B. made her disclosure, the appellant turned himself in to the police and fully confessed his crimes. Once thematter was before the court, he pled guilty at the earliest opportunity. [44] A guilty plea is generally a mitigating factor in sentencing, and its value is increased when it is entered at an early stage of theproceedings: R v Dyck, 2014 SKCA 93 at para 39, 442 Sask R 209 [Dyck].

Co-operating with the police, taking responsibility for anoffence, and making no attempt to cover up criminal conduct are also mitigating factors: Dyck at para 39; R v Hein, 2008 BCCA 230, 231CCC (3d) 105; R v Moostoos, 2017 SKQB 12; R v S.D.P., 2012 SKQB 330, 403 Sask R 145. [45] It is also generally accepted that turning oneself in, confessing to crimes and sparing the police the cost and time of aninvestigation demonstrates an acceptance of responsibility and is entitled to credit as a mitigating factor in sentencing: R v Craig (2003), (ON CA), 177 CCC (3d) 321 (Ont CA).

In fact, some decisions would suggest that extra credit is to be given where aguilty plea is entered in circumstances where, in the absence of same, the prosecution of the case would be difficult and the likelihood ofconviction low: R v Finley (1998), 54 OTC 36 (Ct J (Gen Div)). [46] I agree with the general theme that runs through these cases. That is, a prompt guilty plea is generally an important mitigatingfactor in sentencing, as is a full and unequivocal acceptance of responsibility by the offender.

Furthermore, where an accused personconfesses and pleads guilty to offences that the Crown would not otherwise be able to prove, or admits to much more serious factualcircumstances than the Crown would be able to establish, he or she ought to also be given credit for that as a mitigating factor. [47] That said, the amount of credit to be given to such factors cannot be expressed as a mathematical formula, or as an absolute.Sentencing is an individualized process, and the Court in Lacasse makes it very clear that the weighing and balancing of relevant factors inthe sentencing process is within the trial judge’s discretion. [48] The Crown’s case against the appellant rested almost entirely on his confession to police, and the apology letter he wrote to hiswife.

In relaying the facts to the court, the Crown prosecutor said, in reference to the appellant’s statement:

Now I’ll just give a little bit more detail to the Court coming from the statement. And at this time I’ll just highlight something obviousthat the Court will appreciate. None of this detail would be available to the Crown absent [the appellant’s] willing co-operation to tell thewhole truth of what had transpired and I -- I accept that this is the truth and that he didn’t hide any more. [49] The appellant’s confession and guilty plea were each entitled to significant consideration as mitigating factors.

Indeed, theCrown’s sentencing submission – in seeking a four-year sentence with respect to the offences committed against A.B., and a two-yearconsecutive sentence for the offences committed against C.D. – appeared to recognize the mitigating effect of the appellant’s confession. Isay that because there appeared to be little difference in terms of the seriousness of the offences committed by the appellant against eachvictim.

The only significant difference between the two was that the only evidence against the appellant with respect to C.D. was hisconfession, while there was some other evidence in respect of A.B. [50] The sentencing judge acknowledged that the appellant should be given credit for his confession and his guilty plea, saying: The significant mitigating factors, in my mind, include the fact that [the appellant] surrender[ed] to the police voluntarily, he made a fullconfession and, I understand, wanted to plead guilty to all six charges rather than the four he’s plead guilty to, on his first appearance.

Thatis obviously significantly to his credit, as is the fact that there was, at least at that point, virtually no evidence against him. I do note, assomething of a footnote to that mitigating factor, however, that it was only after he knew that he had been found out that he went to thepolice. Nonetheless, he could have taken the route that others sometimes do that we see in this court and attempted to deny everything andbrazen it out to make the Crown attempt to prove its case through a trial, which would have been extremely traumatic to, certainly, hisfamily, his children and perhaps others.

So he’s entitled to credit for taking those steps. [51] While the sentencing judge’s reasons indicate that he considered the mitigating effects of the appellant’s confession and guiltyplea in a general sense, they do not reveal that he gave specific consideration to the mitigating effect of the appellant’s confession,especially in light of the complete absence of any other evidence against him relating to the offences against C.D. With respect, his failureto do so was an error in principle. 2.

The sentencing judge improperly characterized the sexual abuse the appellant suffered as a childas both a mitigating and aggravating factor [52] The sentencing judge was also made aware during the hearing that the appellant was, himself, the victim of sexual abuse at thehands of family members as a child. He addressed this in his decision by saying: I also note the childhood sexual abuse that he himself suffered and certainly what we see, unfortunately all too often in this court and hasbeen noted in any amount of literature as well, is the generational effects of childhood sexual abuse.

I note that not only is that amitigating factor with respect to [the appellant], it is also an aggravating factor in that he has potentially passed along that same problemto his daughters. (Emphasis added) [53] In my view, finding this to be both a mitigating and an aggravating factor was also an error in principle. [54] Subsection 718.2(

a) requires the court to consider increasing or reducing a sentence to account for any relevant aggravating ormitigating circumstances. In this way, s. 718.2(

a) dovetails with the fundamental principle of proportionality. Mitigating factors are thosewhich tend to decrease either the gravity of the offence or the degree of responsibility of the offender. Aggravating factors are those whichtend to increase the gravity or degree of responsibility. [55] The fact that an offender was subjected to sexual abuse as a child is capable of being a mitigating factor, in that it may be seenas lessening the degree of the offender’s responsibility, or moral culpability, in committing an offence.

A number of reported decisionsreflect this position, including R v Friesen, 2018 MBCA 69; R v C.S., (NLSC), R v Walker, 2017 BCSC 1301, 386CRR (2d) 222, and R v Reed, 2013 ONSC 4247. [56] The fact that the appellant was sexually abused as a child increased neither the gravity of the offences nor his degree ofresponsibility in committing them. As such, it ought to have been considered only a mitigating factor. By describing the fact that theappellant was sexually abused as a child as something which was “also an aggravating factor”, the sentencing judge erred in principle. 3.

The sentencing judge failed to properly apply the principle of totality [57] The sentencing judge also erred, in my view, in his approach to the application of the totality principle. [58] The sentencing judge imposed consecutive sentences for the offences to which the appellant pled guilty. Consecutive sentenceswere mandatory, because the appellant was being sentenced for multiple sexual offences committed against multiple children. In thatregard s. 718.3(7)(

b) reads: 718.3(7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shalldirect … (

b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under

section 163.1,be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than anoffence under

section 163.1. [59] However, when a court is sentencing an offender for multiple offences, and imposing consecutive sentences, it must considerthe principle of totality in s. 718.2(c). It reads as follows:

718.2(

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. [60] The purpose of the totality principle is to ensure that the cumulative sentence rendered does not exceed the overall culpabilityof the offender: R v M.(C.A.), (SCC), [1996] 1 SCR 500; R v Bear, 2016 SKCA 140.

Proper application of the totalityprinciple requires, where consecutive sentences are being imposed, that the judge first determine an appropriate sentence for each offence,then apply the totality principle by taking a “last look” at the cumulative sentence to ensure that it is not excessive for the offender as anindividual.

If the cumulative sentence is excessive, the sentencing judge must adjust it appropriately: R v Louison, 2008 SKCA 69, 310Sask R 217; R v McLean, 2016 SKCA 93 [McLean], [2017] 3 WWR 498. [61] As this Court noted in McLean, a sentencing judge must not conduct the totality analysis backwards when imposingconsecutive sentences for multiple offences, that is, by arriving at a global sentence first, then distributing that sentence among the variousoffences. In this case, it appears as though that is what the sentencing judge did.

The Crown sought a total sentence of six years,comprised of four years in relation to the offences committed against A.B., and two years consecutive for the offences committed againstC.D. The sentencing judge, however, imposed consecutive three-year sentences with respect to each victim. There is nothing in his reasonsto suggest that the sentencing judge approached the task from the standpoint of first determining a fit sentence for each individual offencebefore taking a last look and making adjustments to ensure that the total sentence was not excessive.

Instead, he appears to have focusedon the appropriate total sentence, then distributed the individual sentences accordingly. This was an error in principle. C. Do the identified errors justify intervention? [62] Finding that a sentencing judge erred in principle does not lead inexorably to appellate intervention.

As the Supreme Court saidin paragraph 44 of Lacasse, an error in principle, the failure to consider a relevant factor, or the erroneous consideration of an aggravatingor mitigating factor will justify appellate intervention only where it appears from the sentencing judge’s decision that such an error had animpact on the sentence.

In R v Agin, 2018 BCCA 133 at paras 52–56, 361 CCC (3d) 258 [Agin], the British Columbia Court of Appealsaid that, in light of the deferential standard of review laid down in Lacasse, such an error must be material, in that it had an impact on thejudge’s analysis in imposing the sentence, before appellate intervention will be justified.

If the sentence would not have been differentabsent the error, then the error cannot be said to have had an impact. [63] As I will discuss, I am unable to conclude that any of the errors I have identified in this case, individually or taken together, hadan impact on the sentence that calls for intervention on appeal. [64] With respect to the failure to give separate consideration to the difference between the nature of the evidence against theappellant with respect to each victim, and assess the mitigating impact of his confession and guilty plea separately in light of that, I notethat the reasons when read as a whole demonstrate that the sentencing judge considered the mitigating effect of the appellant’s confessionand guilty plea to be significant.

But he also properly recognized that any mitigating effect had to be balanced against the significantnumber of aggravating factors in play, saying: There are some obvious aggravating factors. Again, I’m not going to go through everything, but there are a few that are particularlysignificant. They are, I think, obvious. The fact that these were extremely young children, the fact that [the appellant] was not just in aposition of trust with respect to them, but I think in the position of the greatest trust possible, that of a parent.

These are people at theirmost vulnerable to whom [the appellant] is one of the two people in the world that they should be entitled to look to for protection andsafety as opposed to attack. It is also aggravating that there was actual penile penetration, that this occurred on multiple occurrences over a significant period of time. [65] With respect to the error relating to the “double-edged” consideration of the sexual abuse the appellant suffered as a child, itmust be remembered that the sentencing judge was required to determine a fit sentence for the offences the appellant committed againsteach of the victims.

A fit sentence takes into account not only the circumstances of the offender, but also the circumstances of the offence.While an offender is entitled to credit for mitigating personal circumstances, they must be considered alongside aggravatingcircumstances, as part of the weighing process to arrive at a fit sentence. [66] In this case, the sentencing judge concluded that a three-year sentence was appropriate with respect to the offences committedagainst each victim. He did so having taken into account the serious circumstances of the offences, including: (

i) the nature of theappellant’s parental relationship to the victims; (ii) the extremely young age and level of vulnerability of the victims; (iii) the degree towhich the appellant exploited those factors; (iv) the number, nature and severity of the incidents of sexual abuse the appellant perpetratedagainst each victim; (

v) the time frame over which the offending continued; and (vi) the governing jurisprudence (in particular this Court’scomments in L.V. on sentencing in cases of sexual assault committed against children by persons in positions of trust).

He also consideredthe appellant’s personal circumstances (including his lack of past criminal record, the abuse he suffered as a child, his desire fortreatment), his confession and early guilty plea. [67] The sentencing judge’s reasons demonstrate that, in the end, he considered and balanced the aggravating and mitigating factorsfully, even if he did not explicitly articulate or individually consider the specific mitigating impact of the appellant’s full confession andthe role that played in the Crown’s case against him.

Furthermore, there is nothing in the reasons to suggest that despite erroneouslycharacterizing the sexual abuse the appellant suffered as a child as both a mitigating and aggravating factor, the sentencing judge attachedany particular weight to that conclusion. As a result, I am unable to conclude that these errors had any impact on either the three-yearsentences with respect to each individual victim, or the total sentence ultimately imposed.

Accordingly, I would not interfere on that basis. [68] I reach the same conclusion with respect to the sentencing judge’s error in the application of the totality principle. [69] By virtue of s. 718.3(7)(b), the imposition of consecutive sentences was required by law. [70] There was an apparent structural flaw in the sentencing judge’s approach, in that his reasons do not reflect that he firstdetermined a fit sentence for each individual offence before taking a last look to ensure the cumulative sentence was not excessive.However, when read as a whole, the sentencing judge’s reasons demonstrate that he was aware of the requirement to pay heed to the

principle of totality, and that he imposed the sentence with that principle in mind. In that regard, he said: Sentencing law also requires that the principle of totality be taken into effect; that is, that the overall sentence reflect the offender’s overallmoral culpability.

Moral culpability is another concept that has no obvious way of calculation. [71] As a result, I am unable to conclude that the error in the way in which the sentencing judge approached the totality principleaffected either the individual sentences or the cumulative sentence ultimately imposed. [72] Accordingly, even though I have found that the sentencing judge made certain errors in principle, I am satisfied those errorsultimately had no effect on the sentence imposed either individually or collectively. For that reason, I would not interfere with the term ofincarceration imposed. D.

Was the sentence demonstrably unfit? [73] The appellant argues that the six-year total sentence was demonstrably unfit because it does not accord with principles ofproportionality, parity and totality. [74] I would also not interfere with the term of incarceration imposed on this basis. While the sentence imposed on the appellant inthis case was undoubtedly significant, it was not demonstrably unfit. [75] It is possible for a sentence to be demonstrably unfit even if the judge has made no singular identifiable error in imposing it:Lacasse at para 52; L.V. at para 73; Agin at para 57.

However, when considering whether a sentence is demonstrably unfit, it is importantto keep in mind the deferential approach to be employed in sentence appeals. A court of appeal may not intervene simply because it wouldhave weighed the relevant sentencing factors differently than the trial judge, or because it would have arrived at a different number: R vBurke, 2016 SKCA 100, 484 Sask R 224. The choice of sentencing range or of a category within a range falls within the sentencingjudge’s discretion and cannot in itself constitute a reviewable error.

An appellate court may not intervene on the ground that it would haveput the sentence in a different range or category.

It may intervene only if the sentence the trial judge imposed is demonstrably unfit:Lacasse at para 51. [76] Establishing that a sentence is demonstrably unfit requires clearing a high threshold. “Demonstrably unfit” has been equatedwith expressions such as “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a“substantial and marked departure”: Lacasse at para 52; see also Dyck at para 19; R v Pankewich, 2002 SKCA 7 at paras 31–32, 161 CCC(3d) 534. [77] The inquiry into the fitness of a sentence requires attention to all the sentencing principles set out in ss. 718–718.2 of theCriminal Code.

First among these is the principle of proportionality contained in s. 718.1, which provides that a sentence must beproportionate to the gravity of the offence and the degree of responsibility of the offender.

A sentence will be demonstrably unfit if itconstitutes an unreasonable departure from this principle: Lacasse at para 53. [78] In this case, the sentence imposed on the appellant clearly reflected the significant gravity of his offences, and the extremelyhigh level of his moral culpability in committing them, as it properly should have. [79] In R v Yuzicapi, 2011 SKCA 134 at para 28, [2012] 5 WWR 419, this Court said there are three important considerations indetermining the gravity of the offence: (

i) the nature and comparative seriousness of the offence; (ii) the circumstances of its commission;and (iii) the harm caused by it. In the appellant’s case, consideration of each of these three factors leads inevitably to the conclusion thathis offences were crimes of significant gravity. [80] As noted in L.V., sexual offences committed against children by parents or others in positions of trust are particularly seriousoffences, and the harm they cause is evident.

In that respect, Chief Justice Richards wrote: [92] … The sexual abuse of a child by a parent is self-evidently a crime of great repugnance involving, as it does, a gross violation oftrust by the very person most responsible for providing the child with protection and sanctuary. L.V. abused his daughter on hundreds ofoccasions over a span of three years.

He continued the assaults over her protests and took disturbing steps to record and document hissexual interest in her. [93] The sexual abuse of children carries with it a variety of serious consequences including traumatic feelings of betrayal,powerlessness and stigmatization. See: David Finkelhor and Angela Browne, “The Traumatic Impact of Child Sexual Abuse: AConceptualization” (1985) 55(4) American Journal of Orthopsychiatry 530; Melissa Polusny and Victoria Follette, “Long-term correlatesof child sexual abuse: Theory and review of the empirical literature” (1995) 4 Applied & Preventative Psychology 143.

In this case, thecomplainant described how years of abuse has devastated her ambition and self-esteem and caused her to fall into depression, to sufferfrequent emotional breakdowns and to fear falling asleep at night. She had to be moved into a special education program to complete herschooling.

She described how she continues to feel shame and guilt for being a victim [81] As such, the Court concluded, where sexual offences committed against children involve a high degree of moral culpability onthe part of the offender, heavy sanctions are appropriate: L.V. at paras 95–96. [82] This recognition of the particularly grave nature of cases involving the sexual abuse of children by parents or other persons inpositions of trust is consistent with the approach taken by appellate courts in other provinces.

For instance, in cases such as R v M.(D.),2012 ONCA 520 at para 44, 288 CCC (3d) 564, and R v D.(D.) (2002), (ON CA), 163 CCC (3d) 471 (Ont CA) [D.(D.)], the Ontario Court of Appeal said that although sentencing must always be individualized, where there is prolonged sexual abuse of achild, including penetration, by an adult in a position of trust, significant penitentiary terms ought to be imposed. In D.(D.), Moldaver J.A.(as he then was) wrote: [34] The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to

satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718 (a), (

b) and (

c) of the Criminal Code , commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing. [35] We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and, as such, they make easy prey.

People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow. [ 83 ] In R v E.S. , 2017 BCCA 354 , 356 CCC (3d) 294, the British Columbia Court of Appeal also commented on the serious nature of sexual assaults committed against children by “position of trust” offenders, and the need for heavy penalties in such cases. In that regard, Hunter J.A. wrote: [60] In R. v.

O.M. , 2009 BCCA 287 at paras. 11-12 , Justice Donald made these comments: Prolonged sexual abuse of a child requires a denunciatory sentence… … The sentence imposed by the judge in this case fails to address the need to denounce a crime that society regards with particular abhorrence.

Society’s condemnation reflects the utter vulnerability of an infant child, the position of trust of the parent, and the lasting harm of sexual abuse. [ 84 ] This Court has preferred not to fetter the discretion of sentencing judges by establishing a particular range or starting point sentence for sexual offences committed against children (see L.V. at paras 100–105 ; R v Leroux , 2015 SKCA 48 , [2015] 9 WWR 709 [ Leroux ]).

But the message from this Court, and other appellate courts across the country, is consistent as it pertains to the application of the principles of sentencing for sexual offences committed against children by persons occupying a position of trust. That is, offences involving sexual acts committed against children are objectively more serious than those involving the same conduct committed against adults and, in most instances, will attract a more significant sentence. [ 85 ] L.V. stands as a clear statement to that effect.

In L.V. , this Court said that the three-year threshold established for major sexual assaults involving adult victims is generally inadequate in cases involving children and that, all other things being equal, a sexual assault committed against a child by a parent or other person in a position of trust warrants a longer sentence than the same act of sexual assault committed against an adult. In part, that is because the provisions in ss. 718.01, 718.2(a)(ii.1) and 718.2(a)(iii) of the Criminal Code speak specifically to Parliament’s view of the aggravated nature of sexual offences committed against children.

In that regard, Chief Justice Richards wrote: [100] As explained above, the Court established a three-year starting point sentence almost 25 years ago for sexual assaults against adults. Since that time, the three-year mark has been the standard reference point for sentencing judges when imposing sanctions on offenders who have sexually assaulted adults. Nonetheless, it has also sometimes served as a touchstone in sentencing those who have assaulted children. In this latter context, sentences have not infrequently been imposed with little or no real analysis of the nature or the circumstances of the offence.

In other words, even though the Court has never formally endorsed a starting point sentence for sexual offences against children, sentencing decisions in relation to such offences have reasonably often simply defaulted to the three-year mark. [101] The broad results of this approach are unsatisfactory.

We now have a situation where there is often little, if any, difference between the sentences imposed on offenders who engage in a single act of sexual assault on an adult victim and offenders who, as parents or persons in positions of trust or authority, sexually abuse a child either just once or multiple times over an extended period.

In other words, and generalizing substantially of course, both kinds of offences are tending to yield the same sentence even though, on any meaningful measure , assaults against a child should normally warrant a stronger sanction. [102] Speaking in somewhat more abstract terms, it is evident that sentencing decisions in this jurisdiction have tended to inadequately recognize the gravity of a sexual assault against a child as compared to a sexual assault on an adult.

However, Parliament has expressly provided in s. 718.2 (a)(ii.1) of the Criminal Code that, if the victim of an assault is a child, this must be considered to be an aggravating factor when it comes to sentencing. Our decisions have also tended to inadequately recognize that, as per s. 718.2 (a)(iii) of the Code , it is an aggravating factor if a parent or person in a position of trust abuses his or her authority to victimize a child.

Section 718.01 of the Code is also relevant here. It says denunciation and deterrence are to be given primary consideration when sentencing for a crime that involves the abuse of a person under the age of 18. All of this means that , in principle and all other things being equal ,

an act of sexual assault against a child by a parent or other person in authority should attract a higher sentence than the same act of assault perpetrated against an adult. In my view , and as a matter of broad principle , sentencing results should reflect this reality . (Emphasis added) [ 86 ] In the present case, the sentence imposed by the sentencing judge reflected the significant gravity of the offences and the extremely high level of the appellant’s moral culpability in committing them.

The appellant committed repeated and highly intrusive sexual offences against his own daughters, one of whom was an infant, and one of whom was a toddler, over the course of more than a year.

Both the gravity of the offences and the appellant’s degree of responsibility in committing them rest at the upper end of the scale. [ 87 ] Taking all of that into account, the appellant’s offences against each victim clearly called for significant sentences. [ 88 ] 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, including the principles of parity ( s. 718.2 (b)), totality ( s. 718.2 (c)) and restraint ( ss. 718.2 (

d) and (e)), and the principle that sentences should be increased or reduced to account for any relevant aggravating or mitigating factors ( s. 718.2 (a)).

[ 89 ] The appellant argues that the sentencing judge gave too little weight to the “significant and unique” mitigating factors present in his case. Among those are the appellant’s lack of prior criminal record, his remorse and his desire to make amends as evidenced by his confession, co-operation with the authorities, early guilty plea, and desire for professional treatment. While all of those factors were before the sentencing judge, and may properly be seen as mitigating factors, they do nothing to diminish the gravity of the offences.

And, even in light of these mitigating factors, the appellant’s degree of responsibility in committing the offences was still very high. [ 90 ] As I discussed earlier in these reasons, the record reflects that the sentencing judge acknowledged and carefully considered the mitigating factors in the appellant’s case, which included those I mention in the preceding paragraph, but also recognized that those mitigating factors had to be balanced against the aggravating factors, which included the extremely young age of the children, the position of trust occupied by the appellant, the fact that the assaults involved highly intrusive conduct, and the fact that they occurred on multiple occasions over a significant period of time. [ 91 ] While a sentencing judge cannot ignore the principle of parity, the individualized nature of sentencing means that principles such as parity are secondary to the fundamental principle of proportionality.

Even if a sentence falls outside a particular range, or has never before been imposed for a particular offence, that does not necessarily mean it is demonstrably unfit. As the Court said in Lacasse : [58] There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded.

The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit.

Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case … [ 92 ] Sentencing is an individualized process, so the parity principle does not require uniformity in sentencing. What it requires is that the sentence imposed fall within the acceptable range of sentences imposed for similar offences committed by similar offenders, and that differences in sentences can be rationally explained.

In other words, sentencing is not merely a comparative exercise: R v Klemenz , 2015 SKCA 89 at para 46 , [2016] 1 WWR 234. [ 93 ] The sentencing judge’s reasons in this case demonstrate that he gave consideration to the principle of parity.

While he did not conduct a lengthy review of other sentencing decisions, he made reference to L.V. , and also to the decision of this Court in R v C.(P.) , 2004 SKCA 54 , 249 Sask R 143 [ C.(P.) ]. [ 94 ] In L.V. , this Court increased the sentence from three years to four years, in a case where the offender repeatedly sexually assaulted his teenaged daughter for a period of almost three years, with conduct ranging from fondling to digital penetration. [ 95 ] In C.(P.) , the offender sexually assaulted his granddaughter in various ways, including repeated acts of sexual intercourse, over a five-year period between the time she was 7 and 12 years of age.

This Court allowed a Crown appeal from the 2.5-year sentence imposed by the trial judge, and increased the sentence to 5.5 years. [ 96 ] Given the circumstances of this case, I find no error in the sentencing judge’s consideration of L.V. and C.(P.) as comparators in the parity analysis. The mere fact that the sentencing judge imposed a total sentence greater than the sentence imposed in either of those cases does not mean the sentence is demonstrably unfit. There are obvious factual differences which set the appellant’s case apart from L.V. and C.(P.).

Among the most significant of these is the fact that there were two victims in this case, rather than one, which required the sentencing judge to impose consecutive sentences. A further factor which distinguishes this case from L.V. and C.(P.) , is the extremely young age and vulnerability of the victims.

In my view, those are distinctions which rationally explain why the sentencing judge saw fit to impose a higher total sentence on the appellant than was imposed on the offenders in either L.V. or C.(P.) . [ 97 ] Finally, the sentence in this case is not demonstrably unfit on the basis that it violates the principle of totality. [ 98 ] As I discussed earlier in these reasons, the sentencing judge erred in the technical application of the totality principle. However, that error did not impact the overall fitness of the sentence.

As the Court noted in Leroux , the principle of totality must be viewed and applied through the lens of the fundamental sentencing principle of proportionality. At paragraph 84, Caldwell J.A. wrote:

Section 718.1 demands, because it is the fundamental principle of sentencing, that a sentencing judge craft a cumulative sentence that addresses the moral culpability of the offender and the gravity of the offences in the particular circumstances before the sentencing judge. In this way, a cumulative sentence may yet exceed the most serious of the individual sentences imposed—without offending the totality principle—if it remains a proportionate reflection of the gravity of the offences and the moral culpability of the offender in committing them.

See R v Laprise , 2009 SKCA 46 at para 18 , 324 Sask R 263, R v Abrosimo , 2007 BCCA 406 at para 31 , 225 CCC (3d) 253, and R v Traverse and Ladouceur , 2008 MBCA 110 , at paras 70 and 71 , 238 CCC (3d) 330. (Emphasis in original) [ 99 ] In light of the extreme gravity of the offences and the high degree of the appellant’s moral culpability in committing them, I am unable to conclude that either the individual sentences or the cumulative sentence imposed in this case were demonstrably unfit. E.

Did the sentencing judge err in making the order under s. 161 of the Criminal Code? [ 100 ] The sentencing judge also made a prohibition order under s. 161 of the Criminal Code . For a period of five years following his release from imprisonment, this order prohibits the appellant from attending certain places, seeking or obtaining certain employment, or having contact with children under the age of 16. The operative portion of the order reads as follows:

IT IS HEREBY ORDERED THAT the said [APPELLANT] is prohibited from:

a) attend [sic] a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected tobe present, or a daycare centre, schoolyard, playground or community centre.

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in acapacity, that involves being in a position of trust or authority towards person under that age of 16 years.

c) having any contact – including communication by any means – with a person who is under the age of 16 years, unless the offender doesso under the supervision of a person whom the court considers appropriate; or WITH RESPECT TO (

c) THE APPROPRIATE PERSON IS ANY ADULT WHO IS AWARE OF [THE APPELLANT]’S OFFENCES. [101] The appellant argues that the sentencing judge erred in imposing this ancillary order, because the evidence did not disclose a“pattern” of offending on the appellant’s part and, furthermore, the evidence before the sentencing judge, including the pre-sentencereport, indicated that the appellant was unlikely to reoffend against children in any of the circumstances against which the conditions weredesigned to guard. [102] The Crown argues that there was ample evidence before the sentencing judge to justify the imposition of such a condition,pointing out the fact that the appellant’s offences were committed in his own home, against children so young that their ability to articulatetheir experience was limited. [103] Subsection 161(1) of the Criminal Code reads as follows: 161(1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under

section 730, of an offencereferred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs thatthe accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any othercondition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the courtdirects, an order prohibiting the offender from (

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected tobe present, or a daycare centre, schoolground, playground or community centre; (a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in theorder ordinarily resides or of any other place specified in the order; (

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer ina capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; (

c) having any contact—including communicating by any means—with a person who is under the age of 16 years, unless the offenderdoes so under the supervision of a person whom the court considers appropriate; or (

d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court. [104] Where an offender is convicted of an offence listed in s. 161(1.1) – which includes sexual assault and sexual interference – s.161(1) requires the sentencing judge to consider making an order of this nature.

While it is mandatory that a sentencing judge considermaking such an order in those circumstances, the decision whether to actually make such an order is discretionary: R v K.R.J., 2016 SCC31 at para 11, [2016] 1 SCR 906 [K.R.J.]. [105] Because of the discretionary nature of the decision to make an order under s. 161(1), a deferential standard of review applies.Appellate intervention will be warranted with respect to an order under s. 161(1) only where there has been an error in principle, failure toconsider relevant factors, over or under emphasis of appropriate factors, or where the resulting sentence is demonstrably unfit: R v R.K.A.,2006 ABCA 82 at para 4, 208 CCC (3d) 74 [R.K.A.]. [106] Orders made under s. 161 have a predominantly protective purpose: K.R.J.

As this Court noted in R v Allaby, 2017 SKCA 25,353 CCC (3d) 476, that protective purpose is accomplished, in part, by restricting a past offender’s access to children.

Section 161 wasdesigned to empower courts to craft tailored orders to address the nature and degree of risk that a sexual offender poses to children oncereleased into the community. These orders can have a significant impact on the liberty and security of offenders and can subject them to aconsiderable degree of stigma. For that reason, orders under s. 161 will be justified only where there is an evidentiary basis upon which toconclude that the particular offender poses a risk to children and the court is satisfied that the specific terms of the order are a reasonableattempt to minimize the risk.

The terms must be crafted to carefully respond to an offender’s specific circumstances: K.R.J. at paras 47–54; R v Brar, 2016 ONCA 724 at para 18, 134 OR (3d) 95. [107] In R.K.A., the Alberta Court of Appeal said that a purposive approach to the imposition of s. 161 orders is required, and discussedthe factors that a sentencing court ought to consider in deciding whether to make such an order: [21] Many of the factors which indicate incarceration as a sentence are also factors favouring a s. 161 order, such as the nature of theoffence, the circumstances in which it was committed, prior related record and risk of re-offending.

They similarly inform its terms. Theage and vulnerability of the victim(s), and the specifics of the offence, in particular, its severity, its duration, the number of victims and itsimpact on the victim(

s) are all relevant to the inquiry: see, for example, R. v. Hirtle (1999), (NS CA), 176 N.S.R. (2d)138 (C.A.); R. v. Jewell and Gramlick (1995), (ON CA), 100 C.C.C. (3d) 270 (Ont. C.A.); R. v. Henry, [1999] O.J. No.5095 (Prov. Div.); R. v. R.W.K. (2001), 2001 ABPC 45 , 285 A.R. 174 (P.C.). Where any of those factors are more extreme,onerous, lengthy restrictions are imposed: see R. v. R.M.G. (2001), 51 W.C.B. (2d) 322 (Nfld. P.C.). [22] The similarity of the offence to the restrictions has also been considered, for example, where the offence occurred while the

offender was working in a position which involved contact with children, particularly where the offender was in a position of trust: R. v.E.L., [1999] O.J. No. 5433 (S.C.); R. v. J.L.M. (2003), 59 W.C.B. (2d) 28 (Nfld. P.C.). [23] The danger to children is key; therefore, previous convictions for sexual assaults on children, prior related records and expertopinions on the offender’s risk of reoffending are relevant, but are not prerequisites to such an order: see, R. v. Hirtle; R. v. Robinson,[1998] O.J. No. 6406 (Prov. Div.); R. v. P.W., [1998] O.J. No. 5431 (Prov. Div.).

The offender’s failure to take responsibility for theoffence, lack of remorse, lack of insight into the seriousness of the offence, and reluctance to take treatment have all been found indicativeof future risk: see, for example, R. v. R.R., [2001] O.J. No. 699 (S.C.); R. v. Lavictoire, [1995] O.J. No. 4631 (S.C.); R. v. P.W. [24] Courts have also considered factors which demonstrate that the risk of reoffending may be reduced.

These include expert evidenceof the offender’s rehabilitation and support of family and friends to avoid recidivism: Prince Edward Island (Director of Child Welfare) v.R.M. (2002), 216 Nfld. & P.E.I.R. 220 (S.C. T.D.), reversed on other grounds (2003), 2003 PESCAD 22 , 226 Nfld. & P.E.I.R.241 (P.E.I. C.A.). Evidence that the offence was aberrant behaviour in an otherwise unblemished past has also been taken into account: R.v. Robinson, [2000] O.J. No. 5161 (S.C.), aff’d (2002), (ON CA), 159 O.A.C. 286.

In such cases, the order may be ofa lesser duration than life or the restrictions more limited and related to the specific circumstances of the offence. [25] In R. v. R.M.G. (2001), 51 W.C.B. (2d) 322 (Nfld. P.C.) the court commented that s. 161 should be given a generousinterpretation. It observed that if a s. 161 order is too short, the purpose of the legislation is defeated and children are placed at risk; on theother hand, one advantage of a lengthy period is that a variation can be made if circumstances change. [108] I agree with this reasoning.

While there must be an evidentiary basis upon which to conclude that the offender poses a risk tochildren before an order under s. 161 can be made, the jurisprudence would suggest that the evidentiary bar is not high. In R.K.A., theCourt noted that it did not require that the offender have a prior record of related convictions, or that there be any evidence of havingoffended in the proscribed circumstances.

A sentencing judge need only have an evidentiary basis upon which to conclude that theparticular offender poses a risk to young children and be satisfied that the terms of the order are a reasonable attempt to minimize that risk.As the Newfoundland and Labrador Court of Appeal noted in R v Miller, 2017 NLCA 22, 354 CCC (3d) 58, that evidence may properlybe found in the facts and circumstances of the offences for which the offender is being sentenced. [109] In this case, the sentencing judge said this about the order under s. 161: … I have considered whether or not it would be appropriate.

My concern is, obviously, with respect to the potential for attacks on otherchildren in the future once [the appellant] is released. The presentence report indicates a low likelihood of reoffending. I know that that issimply a — an estimation, as it were. I myself once had to sentence an offender who had a presentence report which calculated a very lowlikelihood of reoffending and who literally, as soon as he was released, started reoffending.

That’s not to say, obviously, that [theappellant] will, it’s simply to recognize the fact that a low likelihood to reoffend is not the same thing as no likelihood to reoffend. [110] In my view, the sentencing judge misstated the applicable law in this passage.

Section 161 requires a sentencing judge to besatisfied that the offender poses a risk to young children; the offender is not required to establish that there is “no likelihood” he willreoffend. Furthermore, having concluded that an order under s. 161 was warranted, the sentencing judge also failed to give considerationto the imposition of conditions that were responsive to the appellant’s personal circumstances and the nature of his offences. These areerrors which had an impact on this aspect of the sentence. Accordingly, appellate intervention is justified.

It falls to this Court to determinewhether an order under s. 161 is appropriate and, if so, for what duration, and upon what conditions. [111] The author of the pre-sentence report opined that the appellant was a “Below Average Risk for supervision and intervention”, asit related to sexual reoffending. Despite that, in my view, there is evidence which speaks to the type of risk against which s. 161 orders aredesigned to guard. That evidence is found in the circumstances of the offences.

The appellant committed serious, repeated andopportunistic sexual offences against his own daughters at a time when they were extremely young and extremely vulnerable. Theseoffences were committed in his own home, and while he was alone with the girls. The appellant clearly recognized that what he was doingwas wrong, yet he was unable to stop himself. Instead, he repeated the offences on multiple occasions, over a protracted period of time,progressing from exposure and touching to sexual abuse that was extremely grave and highly intrusive in nature.

The appellant preyed onthe compliance inherent in the girls’ young age and lack of knowledge for his own gratification. He was able to do so, apparently, whilehis wife suspected nothing. As far as she was aware, there should have been no reason why he would not be trusted to be alone with thegirls.

The appellant did not stop offending voluntarily; he continued until he got caught. [112] In my view, those circumstances clearly evidence a risk of the nature to justify an order under s. 161, notwithstanding theappellant’s expressions of remorse, desire for treatment, and the opinion of the probation officer who prepared the pre-sentence report.Based on the evidence, I would impose an order of the same duration as that imposed by the sentencing judge, being five years. [113] That said, the terms of such an order must be carefully crafted to respond to the offender’s circumstances.

I would note that theappellant’s offences did not involve children who were strangers, or even the children of acquaintances, friends, or other family members.They were exclusively his own children. There was also no “public” aspect to his offending; all of the appellant’s offences werecommitted in his own home, and behind closed doors, so to speak.

In short, the evidence does not support the conclusion that the appellantposes a risk to all children, or to children in public areas, but rather that his risk is confined to children with whom he has a direct andongoing relationship, and the opportunity for frequent and unsupervised contact. [114] Accordingly, I conclude it is not appropriate to impose the condition described s. 161(a), because that condition does notrepresent a reasonable measure necessary to minimize the risk the appellant poses.

Nor is a condition prohibiting him from having “anyform of communication” with persons under the age of 16 appropriate. However, the remainder of the conditions described ss. 161(

b) and(

c) are a different story. As I mentioned in the preceding paragraph, the circumstances of the offences compel the conclusion that theappellant poses a risk to children with whom he has a direct relationship, and the opportunity for frequent and unsupervised in-personcontact. Conditions that prohibit him from having employment relating to, being in a position of trust, or having unsupervised in-personcontact with children under the age of 16 are reasonable and appropriate measures to address that risk. [115] In the result, I would allow this ground of appeal, to the extent of removing condition “a)” from the s. 161 order. I would also

amend condition “c)” by changing it to read “having any in person contact” and removing the words “including communication by any means”. VII. surcharges [ 116 ] The appellant was ordered to pay victim fine surcharges totalling $800.00 with respect to the four offences of which he was convicted. In R v Boudreault , 2018 SCC 58 , 429 DLR (4th) 583, the Supreme Court of Canada struck down the mandatory surcharge provisions of s. 737 as unconstitutional. Accordingly, the surcharges in the appellant’s case must be cancelled. VIII.

Conclusion [ 117 ] The appeal is allowed, but only to the extent of varying the conditions of the s. 161 order, and cancellation of the surcharges. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Jackson J.A.” for Barrington-Foote J.A.