R v L.A., 2023 SKCA 136

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainants shall not be published. Court of Appeal for Saskatchewan Docket: CACR3611 Citation: R v L.A. , 2023 SKCA 136 Date: 2023-12-29 Between: L.A. Appellant And His Majesty the King Respondent Before: Jackson, McCreary and Drennan JJ.A.

Disposition: Conviction appeal allowed in part; sentence appeal allowed in part Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Madam Justice McCreary In dissent: The Honourable Madam Justice Drennan On appeal from: Provincial Court (Sask), Rosthern Appeal heard: April 6, 2023 Counsel: Luke Coupal for the Appellant Kelly Kaip for the Respondent Jackson J.A. I.

Introduction [ 1 ] This appeal requires the Court to consider the sentencing principles of proportionality, parity and totality, as well as the rights of victims of sexual abuse, following the Supreme Court of Canada’s decision in R v Friesen , 2020 SCC 9 , [2020] 1 SCR 424 [ Friesen ].

It raises a variety of issues including the rights of child-victims of sexual assault to request leniency in their offender’s sentence and when an error can be said to have had an impact on a sentence so as to justify appellate intervention. [ 2 ] The appellant, L.A., pleaded guilty to three counts of sexual assault contrary to s. 271 of the Criminal Code and two counts of inviting a young person to touch a part of the body for a sexual purpose contrary to s. 153(1). The offences were committed against three children when they were between the ages of 12 and 13.

The appellant is the brother of one of the victims and the father of the other two. [ 3 ] After accounting for totality, the sentencing judge imposed a total sentence of ten years, but he did not allocate the sentence among the offences. He also imposed a lifetime order under s. 161(1) of the Criminal Code and a lifetime order under the Sex Offender Information Registration Act , SC 2004, c 10 [ SOIRA ]. [ 4 ] The appellant contests the length of his custodial sentence and the terms and the length of the s. 161 order.

He argues that one of the sentences, imposed before the application of totality, contravenes s. 11(

i) of the Charter . He also submits that his moral culpability cannot support the individual sentences or the ten-year sentence. He argues further that the sentencing judge erred in principle by not allowing his daughters, now 17 and 18 years old, to make submissions asking for leniency.

As part of his appeal, he applies to adduce fresh evidence intended to demonstrate that his daughters do not want their father to serve a lengthy prison sentence, and they were prevented from making their views known to the sentencing judge. [ 5 ] With respect to the s. 161(1) order, he contends that it will prevent him from returning to the family home until after his youngest child, who is currently one year old, turns 16.

He asks that his own family be exempted from the order on the basis that it contravenes s. 12 of the Charter by imposing a cruel and unusual punishment. [ 6 ] For the reasons that follow, I would dismiss the application to adduce fresh evidence.

The sentence appeal is allowed to this limited extent: the duration of the SOIRA order is reduced to 20 years and the s. 161 prohibition order is varied as described in these reasons to allow certain not-in-person communications. [ 7 ] In the course of preparing these reasons, it became apparent that the appellant’s convictions in relation to s. 153(1) were, in fact, illegal. With the Crown’s consent, these convictions will be set aside as part of these reasons. II. Background A.

How the offences came to light [ 8 ] On October 19, 2021, an anonymous source phoned Child and Family Services and told them that E said the appellant had

touched her sexually. The RCMP were contacted. After being brought to the RCMP detachment on that same day, E, who was then 16 years old, told the police that, when she was 12 years old, her father had sexually abused her over the course of several months in 2017. As a result of what E described to the police, the appellant was charged with having sexually assaulted her, with sexual interference and with sexual exploitation contrary to ss. 271, 151 and 153(1) respectively. [ 9 ] On January 26, 2022, the appellant was in court with respect to the above charges.

During the court appearance, he admitted he had committed the offences with which he was charged and then told the judge that he had also sexually abused his other daughter, F, in the same manner as he had abused E. F was also between 12 and 13 years old at the time of offending. As a result of the appellant’s disclosure about F, the police opened an investigation in relation to her.

F, who at the time of her interview with the police was 17 years old, told the police about multiple instances of sexual abuse. [ 10 ] Also on January 26, 2022, R provided a written statement to the police, saying that her brother, the appellant, had sexually assaulted her in 2004, when she was 12 years old and he was 20 years old. [ 11 ] The appellant was ultimately charged with the following Criminal Code offences: (

a) sexually assaulting R between January 1, 2004, and December 31, 2004, contrary to s. 271 ; (

b) touching for a sexual purpose, directly or indirectly, R, between January 1, 2004, and December 31, 2004, contrary to s. 151; (

c) sexually assaulting E between May 1, 2017, and December 31, 2017, contrary to s. 271 ; (

d) inviting E to touch his penis when he was in a position of trust and authority towards her and while she was a young person who was dependent upon him, between May 1, 2017, and December 31, 2017, contrary to s. 153(1); (

e) touching, for a sexual purpose, directly or indirectly, E, between May 1, 2017, and December 31, 2017, contrary to s. 151; (

f) sexually assaulting F between April 1, 2016 and December 31, 2017, contrary to s. 271 ; (

g) inviting F to touch his penis when he was in a position of trust and authority towards her and while she was a young person who was dependent upon him, between April 1, 2016, and December 31, 2017, contrary to s. 153(1); and (

h) touching for a sexual purpose, directly or indirectly, F, between April 1, 2016, and December 31, 2017, contrary to s. 151. [ 12 ] According to the transcript of the sentencing hearing, which took place on June 22, 2022, the appellant’s guilty pleas to the s. 271 and s. 153(1) offences were confirmed on that date. The sentencing judge delivered his reasons on August 10, 2022.

Neither the transcript for June 22, 2022, nor for August 10, 2022, shows how or when the Crown came to stay the three s. 151 charges, but the endorsement on the court file indicates that a stay of proceedings was entered with respect to them on August 10, 2022. [ 13 ] Before issuing these reasons, this Court raised with the parties whether the convictions under s. 153 were illegal. Subsection 153(1) creates the offence of sexual exploitation involving a young person, but s. 153(2) defines “young person” to mean “a person 16 years of age or more but under the age of eighteen years”.

Since the complainants were under the age of 16 years when the criminal acts occurred, the appellant could not be convicted of these offences. In its response, the Crown indicated that it consented to this Court’s expungement of the guilty pleas to sexual exploitation pursuant to s. 686(1)(a)(iii) of the Criminal Code . Allowing the appeal from conviction with respect to these two convictions does not affect the sentence that was imposed. B.

Description of the offences [ 14 ] The sentencing judge reviewed the underlying facts in relation to the offences against R, E and F, which I will summarize here. [ 15 ] With respect to the 2004 charge involving R, the sentencing judge noted she was about 12 years old at the time. The appellant was 20, recently married and had one infant child. Prior to the events in question, and when R began showing signs of entering puberty, the appellant often asked her questions about her body and about sexual matters. On the night of the offence, she was babysitting for the appellant and his wife in their home.

They returned home relatively late. The appellant said he was too tired to take R home. He told her she could sleep in a basement bedroom. When R got into bed, the appellant lay down beside her and touched her breasts and her pubic region. The encounter was brief, and the appellant left the bedroom immediately after. The appellant and R never spoke to each other about the incident.

R did not report the matter to the authorities until after E had been interviewed by the police. [ 16 ] With respect to the 2017 offences involving E, the sentencing judge observed that, on the first occasion, E was in her bed and the appellant was fully clothed. He touched her pubic area outside her clothes. As time went on, the appellant was partially or fully naked when he touched E. His assaults escalated to the point of touching her naked body and inserting his fingers in her vagina. At least once, he asked her to touch his penis and to “jack him off” and give him a “blow job”, which she refused to do.

In her statement to the police, E said she was proud of herself for refusing her father’s invitation to touch and suck on his penis. In total, E was able to identify eight separate incidents of abuse. The timeframe was from May 1, 2017, to December 31, 2017. [ 17 ] Regarding F, the sentencing judge observed that she recounted similar experiences to those of her sister. The appellant’s interest in F also began when she was about 12 or 13 years old. As with E, the appellant’s sexual abuse of F progressed over time from touching her breasts and pubic area to attempting to put his fingers in her vagina.

She recalled that when he first began touching her, he was fully clothed and eventually he was naked. She told the police that on at least one occasion he masturbated himself while touching her naked body. Again, as with her sister, the appellant suddenly stopped sexually assaulting F. The timeframe was from April 1, 2016, to December 31, 2017. C. Appellant’s personal background

[ 18 ] The appellant, who was 38 when sentenced, is the father of nine children, ranging from a one-year-old to F, who was then 18. The appellant has always been employed. He has strong community support and had been participating in counselling before and after being charged. The pre-sentence report reveals a largely unremarkable childhood, from a sentencing perspective. That report details the appellant’s efforts to seek help and to overcome an addiction to pornography. The appellant was assessed to be at a low risk to reoffend generally and sexually.

That risk assessment will be discussed later in these reasons. D. Sentencing hearing and decision [ 19 ] Sentencing was contested as it related to the length of the custodial sentence. The Crown submitted that, having regard for the Supreme Court’s recent decision in Friesen , a four-year sentence for the offence against R was fit. For the offences against E and F, the Crown suggested six years of custody each, with all sentences being consecutive, for a total of 16 years. After considering the totality principle, the Crown recommended a total sentence of ten years of incarceration.

The Crown requested a lifetime SOIRA order and a s. 161 prohibition order of no fixed length. [ 20 ] The defence suggested a sentence of two years for all offences, largely on the basis of the support of the appellant’s family and community and his efforts to take counselling, which had begun in 2016 and ostensibly was the reason he stopped offending sometime before the end of 2017. The appellant’s counsel invited the appellant’s wife (and mother of two of the victims) to make remarks. The sentencing judge permitted her to do so. The mother asked for leniency and said the appellant was needed in the family home.

When the appellant’s counsel asked permission for E to give an oral statement, the sentencing judge denied the request. The appellant made no submissions with respect to the SOIRA or s. 161 orders. [ 21 ] In delivering his reasons at the sentencing hearing, the sentencing judge paraphrased the following aspects of the headnote from Friesen (at 427–430): Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code .

At the sentencing stage, in order to effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause and give effect to both in imposing a sentence. This will help bring sentencing law into line with society’s contemporary understanding of the nature and gravity of sexual violence against children and will ensure that past biases and myths do not filter into the sentencing process.

Parliament’s creation of the modern legislative scheme of sexual offences against children shifted the focus of the sexual offences scheme from sexual propriety to wrongful interference with sexual integrity. The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children. Emphasis on these interests require courts to focus their attention on emotional and psychological harm, not simply physical harm.

In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle, as these factors impact both the gravity of the offence and the degree of responsibility of the offender and understanding them is key to imposing a proportionate sentence. … Courts must also take the modern recognition of the wrongfulness and harmfulness of sexual violence against children into account when determining the offender’s degree of responsibility.

Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child, because it involves the wrongful exploitation of the child by the offender, and because children are so vulnerable. Courts must give proper weight in sentencing to the offender’s underlying attitudes because they are highly relevant to assessing the offender’s moral blameworthiness and to the sentencing objective of denunciation.

The fact that the victim is a child increases the offender’s degree of responsibility. … … That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. … … … an offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child.

Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence, and it also increases the offender’s degree of responsibility. … [S]exual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime and the offender’s increased degree of responsibility. … [T]he age of the victim is also a significant aggravating factor because children who are particularly young are even more vulnerable to sexual violence.

The moral blameworthiness of the offender is enhanced in such cases. [ 22 ] In the result, the sentencing judge was prepared to sentence the appellant as follows: Victim Charge Concurrent Consecutive R s. 271, sexual assault 2 years E s. 271, sexual assault 5 years E s. 153(1), invitation to sexual touching when in a position of trust 5 years F s. 271, sexual assault 5 years F s. 153(1), invitation to sexual touching when in a position of trust 5 years Total: 12 years [ 23 ] After applying the principle of totality to the cumulative total, the sentencing judge reduced the total to ten years.

However, he did not allocate that global sentence among the various offences. Rather, on each Conviction (Form 35 of the Criminal Code ), after the

sentence of two or five years is shown, there is a handwritten note saying “accumulative total is 12 years; applying the principle of totality,court reducing sentence to 10 years”. [24] The sentencing judge also imposed a lifetime SOIRA order and a lifetime s. 161 order. [25] I will review the sentencing judge’s reasons in greater detail in relation to the specific grounds of appeal. III. Points in issue [26] The appellant submits that the sentencing judge committed the following errors in principle: (

a) he gave no effect to the mother’s request for leniency and to maintain the family unit and refused to hear the oral statement ofE, thereby breaching the provisions of the Canadian Victims Bill of Rights, SC 2015, c 13, s 2 [Canadian Victims Bill]; (

b) his decision is a breach of s. 11(

i) of the Charter, as a two-year consecutive sentence in relation to the offence against R,which occurred in 2004, was before the Criminal Code was amended to increase the maximum penalty for a s. 271 offence from ten yearsto 14 years and to make sentences for sexual offences against children consecutive; (

c) he gave insufficient weight to a series of factors that should have served as mitigating factors, and the gravity of the offencesdoes not warrant the sentences imposed; (

d) he gave insufficient consideration to s. 718.2(

b) of the Criminal Code, resulting in a significant lack of parity with othersimilar offences committed by similar offenders in similar circumstances; (

e) he misapplied the totality principle, thereby imposing a sentence that is unduly long and excessively harsh; and (

f) he breached the appellant’s s. 12 Charter right not to be subjected to cruel and unusual treatment and punishment by imposinga lifetime order under s. 161 of the Criminal Code, prohibiting him from communicating with persons under the age of 16, which extendsto his own children. [27] The appellant also applies to adduce fresh evidence in the form of an affidavit from each of E and F, requesting leniency and adesire to keep the family intact. I will consider the issues in relation to this application when addressing point (

a) above regarding theCanadian Victims Bill. [28] In specific terms, the appellant asks the Court to set aside the sentence of ten years of imprisonment and impose a totalsentence of five years calculated as follows: Victim Charge ConcurrentConsecutiveR s. 271, sexual assault 90 days E s. 271, sexual assault 2.5 yearsE s. 153(1), invitation to sexual touching when in a position of trust2.5 years F s. 271, sexual assault 2.5 yearsF s. 153(1), invitation to sexual touching when in a position of trust2.5 years Total:5 years [29] The appellant also seeks an exception to the s. 161 order, which would exclude any of his own children from its ambit.

IV. Standard of review [30] An appellate court can only intervene to vary a sentence if (

a) the sentence is demonstrably unfit or (

b) the sentencing judgemade an error in principle that had an impact on the sentence: R v Lacasse, 2015 SCC 64 at paras 41–44, [2015] 3 SCR 1089 [Lacasse].Here, the appellant does not assert that the sentence is demonstrably unfit. Rather, his grounds of appeal raise what he submits are errorsin principle, as identified above, that, in his submission, had a material effect on the resulting custodial sentence. The overarching issuebecomes, therefore, whether the appellant has identified any error in principle that meets the applicable standard of review.

His argumentregarding an exception or exemption from s. 161 is a constitutional argument made for the first time in this Court about which more willbe said later. V. Analysis A. The application of Friesen 1. Importance of Friesen [31] Before beginning my analysis, it is important to review the salient aspects of Friesen. The sentencing judge correctlydetermined that Friesen now plays a significant role in sentencing offenders for sexual offences committed against children.

Appellatecourts in other provinces have described Friesen as a “watershed decision” (R v Alcorn, 2021 MBCA 101at para 32, 407 CCC (3d) 395[Alcorn], leave to appeal to SCC refused, , and R v AAJT, 2022 MBCA 47 at para 18) and as reflecting a “paradigmshift” (R c X, 2022 QCCA 266 at para 16). As a demonstration of the far-reaching effect of Friesen, it applies in the analysis of all theappellant’s grounds of appeal.

2. Sentencing considerations must align with Parliament’s intention [ 32 ] In Friesen , the Supreme Court reviewed the legislative underpinnings mandating a need for reform of the law of sentencing as it pertains to sexual offences committed against children. It noted that “Parliament has repeatedly increased sentences for sexual offences against children” (at para 98).

By way of culminating example, in 2015, Parliament enacted the Tougher Penalties for Child Predators Act , SC 2015, c 23, s 2–4 [ Child Predators Act ], which increased the maximum sentences for numerous sexual offences against children, including sexual interference, invitation to sexual touching, and sexual exploitation. In the case of sexual assault where the victim is under the age of 16, that enactment also increased the maximum term of incarceration from ten to 14 years, when prosecuted by indictment, and from 18 months to two years less a day, when prosecuted by way of

summary conviction (s. 14). The Child Predators Act also contains a direction to sentencing courts to make sentences for sexual abuse against children consecutive when there is more than one victim (s. 17). [ 33 ] In commenting on what courts are to make of these legislative changes, the Supreme Court observed that an increase in a maximum sentence should be “understood as shifting the distribution of proportionate sentences for an offence” ( Friesen at para 97 ).

The Supreme Court found that “protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code ” (at para 42). [ 34 ] Friesen reviewed extensively the public policy basis in support of this legislative change for reforming sentencing of offenders who commit sexual offences against children. The Supreme Court provided the following backdrop for a contemporary understanding of sexual violence against children and from where the harms might be expected to flow: (

a) there is a pervasive prevalence of sexual violence against children, and “[n]ew technologies have enabled new forms of sexual violence” (at para 47); and (

b) there is an emerging understanding as to the “wrongfulness and harmfulness” of sexual violence against children (at para 50): (

i) the harm to the personal autonomy, bodily integrity, sexual integrity, dignity and equality of children (at paras 51–59); (ii) the direct damage to immediate familial and community relationships (at paras 60–61); (iii) the indirect damage to families, communities and society (at paras 62–64); (iv) the wrongfulness of exploiting children’s weaker position in society (at paras 65–67); (

v) the disproportionate impact on girls and the links to violence against women (at paras 68–69); and (vi) the disproportionate impact on Indigenous people and other vulnerable persons (at paras 70–73). [ 35 ] From these observations, the Supreme Court directs trial and appellate courts to pay heed to the following sentencing considerations to better reflect a contemporary approach to sentencing for sexual violence against children: (

a) account for harmfulness and wrongfulness in the proportionality assessment ( Friesen at para 75 ); (

b) address and reaffirm the gravity of the offence, with particular emphasis on (

i) the inherent wrongfulness of the offence (at paras 77–78); (ii) the potential harms to the child (at paras 79–84); and (iii) the actual harm (at paras 85–86); (

c) recognize the degree of responsibility of the offender and avoid stereotypes that minimize the harms (at paras 87–92); and (

d) still apply proportionality, even if there does not seem to be a specific victim (at paras 93–94). 3. Pre- Friesen sentencing precedent must be treated with caution [ 36 ] As an ongoing process, it is understood that the above considerations reflect Parliament’s direction that sentences for sexual offences against children need to increase.

To that end, courts are expected to consider the following actions: increase sentences from what might have been previously considered a notional maximum and prioritize denunciation and deterrence. [ 37 ] In Friesen , the Supreme Court declined to “create a national starting point or sentencing range for sexual offences against children”, noting that “[t]he appropriate length and the setting of sentencing ranges or starting points are best left to provincial appellate courts” (at para 106). However, it did provide specific guidance on increasing sentences in an actionable manner: (

a) where appropriate, “increase sentences imposed for these offences” from prior precedents and sentencing ranges (at para 100); (b) “[s] exual offences against children should generally be punished more severely than sexual offences against adults ” (at para 107); (c) “ substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim ” (at para 114); (

d) maximum sentences should not be reserved for the “abstract case of the worst crime committed in the worst circumstances” (at para 114, quoting R v L.M. , 2008 SCC 31 at para 22 , [2008] 2 SCR 163 [ L.M. ]);

(

e) when analyzing the gravity of the offence, sentencing judges must always “ take into account forms of potential harm that have yet to materialize at the time of sentencing but that are a reasonably foreseeable consequence of the offence and may in fact materialize later in childhood or in adulthood” (at para 84); (

f) where, however, “ direct evidence of the actual harm to the child is unavailable, courts should use the harm to the child as a lens through which to analyze the significance of many particular aggravating factors” (at para 86); (g) “[c]ourts must also take the modern recognition of the wrongfulness and harmfulness of sexual violence against children into account when determining the offender’s degree of responsibility” (at para 87); (h) “mid-single digit penitentiary terms for sexual offences against children are normal” and “upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances” (at para 114); and (

i) it is an “ error of law to treat sexual interference as less serious than sexual assault” (at para 120). [ 38 ] Making it clear that it was not providing a checklist or an exhaustive set of factors, the Supreme Court offered some comments to be considered when determining a fit sentence for offenders of sexual abuse against children in an effort “to promote the uniform application of the law of sentencing ” ( Friesen at para 121 ). The following list encapsulates those comments: (

a) where the “sentencing judge finds that the offender presents an increased likelihood of reoffending, the imperative of preventing further harm to children calls for emphasis on the sentencing objective of separating the offender from society in s. 718 (

c) of the Criminal Code ” (at para 123); (b) “the only way to achieve both short-term and long-term protection of children may thus be to impose a lengthy sentence” (at para 124); (c) “[a]ny breach of trust is likely to increase the harm to the victim and thus the gravity of the offence” (at para 126); (d) “[a] child will likely suffer more harm from sexual violence where there is a closer relationship and a higher degree of trust between the child and the offender” (at para 126); (e) “[t]he abuse of a position of trust is also aggravating because it increases the offender’s degree of responsibility” (at para 129); (f) “all other things being equal, an offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child” (at para 130); (

g) the “duration and frequency of sexual violence” (i) “can significantly increase the harm to the victim”, (ii) “magnifies the severity of the offence”, and (iii) “increases the offender’s moral blameworthiness” (at para 131); (h) “[i]f the conviction for a single charge includes multiple instances of sexual violence, the sentencing judge is to give weight to this factor and should not analogize the case to single instance cases simply because those cases also involved only a single charge” (at para 132); (i) “sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime” (at para 133); (j) “the moral blameworthiness of the offender is enhanced when the victim is particularly young and is thus even more vulnerable to sexual violence” (at para 135); (k) “courts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent. … [S]exual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy” (at para 136); (

l) courts are strongly cautioned “against downgrading the wrongfulness of the offence or the harm to the victim where the sexually violent conduct does not involve penetration, fellatio, or cunnilingus, but instead touching or masturbation” (at para 144); (m) “courts must recognize the violence and exploitation in any physical interference of a sexual nature with a child, regardless of whether penetration was involved” (at para 145); (

n) while the “type of physical act can be a relevant factor to determine the degree of physical interference … [T]here is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference” (at para 145); (o) “it is an error to assume that an assault that involves touching is inherently less physically intrusive than an assault that involves fellatio, cunnilingus, or penetration. … [D]epending on the circumstances of the case, touching that is both extensive and intrusive can be equally or even more physically intrusive than

an act of fellatio, cunnilingus, or penetration” (at para 145); (

p) courts should “cease to use terms such as ‘fondling’ or ‘caressing’ when referring to sexual violence against children” (at para 147); and (q) “it is an error of law to treat ‘ de facto consent’ as a mitigating factor” when children have been sexually assaulted (at para 149). [ 39 ] At several points in Friesen , the Supreme Court tempered this strong language with a reminder that sentencing remains an individualized exercise, as the following passages indicate: (

a) the legislative changes that were made in 2005 and 2015, and the Court’s statements regarding the need to move the grid

upward for child sexual abuse sentences, “should not be taken as a direction to disregard relevant factors that may reduce the offender’s moral culpability” (at para 91); and (b) “while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality” (at para 104). [ 40 ] In short, the Supreme Court’s unanimous decision in Friesen charted a new course for courts in Canada with respect to sentencing offenders who commit acts of sexual abuse against children.

One significance of Friesen of particular importance is that it requires courts to understand the sentencing principles of proportionality, parity and totality differently when sentencing for sexual violence against children. While the Supreme Court did not set a starting point sentence for this type of offending, it has clearly required all sentencing courts to view pre- Friesen precedents with a degree of caution and to consider more deeply the harms caused by the sexual abuse of children. [ 41 ] It is against this backdrop that the appellant’s grounds of appeal must be addressed.

Further references to specific passages in Friesen will be made as they pertain to the particular issues. B. Treatment of the family’s wishes for leniency 1. Background: Family’s views [ 42 ] During sentencing submissions, Crown counsel read the victim impact statement of R into the record. Crown counsel did not mention or provide statements from either E or F, and the sentencing judge did not raise the issue with the Crown. [ 43 ] The Crown did, however, ask that the videorecorded statement that E gave to the police be made an exhibit, which request was granted.

Crown counsel then played 12 minutes of that recording in open court. Those 12 minutes are particularly moving, showing a 16- year-old clearly struggling with recounting the abuses committed against her and demonstrating the extent of the stress on her as a result of the harm done. [ 44 ] Toward the end of defence counsel’s submissions, he asked the appellant’s wife, who, as noted, is the mother of E and F, if she wanted to say anything to the sentencing judge.

The Crown expressed concern over the mother’s addressing the court, but the sentencing judge allowed her to speak. [ 45 ] When the mother began her remarks, she said, “We did send letters in advance through Victim Services. I’m sorry if they did not arrive here”. During the course of her presentation, it was clear that she did not want the appellant to go to jail. Among other statements, she said as follows: [The appellant’s] absence causes more pain and more grief for the victims in this situation. His daughters love him; his sons want to make him proud. I do not know how to raise boys to become men.

I do not know how to teach my sons to learn from -- from my own mistakes. [The appellant] enjoys a variety of activities with our children: fishing, dirt bikes, street bikes, cards, and chess top the list. … [The appellant] did not deny his charges. Rather, he confessed to everything, even things the police did not know about. One thing said was that [the appellant] was not honest with his psychologist about his actions towards his sister, but after those text messages were sent, he did tell her about what had happened. He was honest … with his offences with friends, new and old.

He realizes his need for counselling from his psychologist and accountability from his [Micah Mission, Circle of Support and Accountability] group. [The appellant] sought help before it was legally required of him. [The appellant] is valuable to the people around him. Whatever -- whether it is in our community, our family, community members, or in the workplace, [the appellant’s] presence continually uplifts those around him. [ 46 ] At the close of the mother’s presentation, defence counsel indicated he also wanted E to make an oral statement.

He argued that it was important that the sentencing judge hear from E because only part of her police statement had been played in the courtroom. The sentencing judge refused the request. [ 47 ] On appeal, the appellant’s counsel advised the Court that the sentencing judge’s decision regarding E meant he could not then call upon F to speak either, which he had intended to do.

E and F would have been approximately 17 and 18 at the time of sentencing. [ 48 ] The appellant applies to adduce fresh evidence in the form of an affidavit from each of E and F, attesting to what they would have said had they been allowed to speak at the sentencing hearing. [ 49 ] In the affidavit of E put forward as fresh evidence, she swore that, if she had been permitted to make remarks at the sentencing hearing, she would have said the following: One of the main reasons someone should go to jail is so they are no longer a threat to society.

As much as I agree with that statement, I would like you to consider the following. Not only had [the appellant] stopped the sexual abuse on his own, afterwards he had apologized many times. He said to us that he could turn himself in so [F] and I would be provided with counselling. We told him that having him away would only make things more difficult. He warned us that if he didn’t go to jail we wouldn’t be able to have counselling until we were eighteen. Despite this we told him it would be better for him to stay, and so he did.

He decided that he would no longer go in the girls’ room and we would only hug if it was initiated by [F] or I. He would talk to his therapist about his sexual urges and he also had more success going without porn than before. Once he was arrested, he told many people of his crime. Including those who I don’t think he was close to. Knowing that pleading innocent would allow a deeper investigation, he chose to plead guilty. By doing this it would not force [F] or I to testify if we didn’t wish to. Not having to testify has resulted in a dramatic improvement in my mental health since going

to therapy. Statistically speaking he isn’t likely to reoffend. Not only has he shown that he’s trying to improve, having him in jail a long time won’t help my family or him. It also won’t get me anything that would help. My family misses him and I’d like him to come back. Selective bits of my testimony were played instead of leaving it in context. Even though all of the evidence should have been presented, only the negative things were presented. I felt like standing up and clarifying all of the inaccuracies on multiple occasions. I also despised the questioning process.

I understand the need for having it without telling me in advance. At the same time, since it was on such short notice I had no time to properly organize my thoughts. The police officer was trying to gather evidence to prove that my dad is guilty. Considering she was only asking me negative questions, it would make sense why I wouldn’t say much positive. I was under the impression that I was to provide evidence and not to talk about how I felt about it or anything else about my dad.

It definitely didn’t help that if she didn’t feel it was relevant she would steer the conversation back to where she felt was important. I also wasn’t aware that it would be my only proper time to speak before the court case. If I had understood how things actually were it would have gone differently. The sexual abuse was bad. However, it was also blown way out of proportion. Despite there being awful memories, it doesn’t take away from the good ones.

I care a lot about if someone is trying to make things right and I see that in dad. [ 50 ] In the fresh evidence affidavit of F, she avers that if she had been permitted to speak, she would have said the following: If I could say one thing in this letter, it would be that my dad … has said sorry to me and my sister [E] on many occasions. He has also asked us if he should turn himself in to the police, but we realized that because there is no chance he’ll reoffend, and was a source of stability in a house as hectic at times as ours, we told him it wouldn’t be a good idea.

He tried to help us become responsible people. You can ask anyone, and they will say he is friendly and cares deeply about people. He likes conversation with people he disagrees with to hear their thoughts, opinions, and beliefs. My dad is very generous. I have literally seen him give the coat off his back. Dad and Mom both care deeply about all of us kids, and we all miss him very much. Despite his mistakes, he truly does want what’s best for us, and cares for us, and I forgive him and want him back in my life. If given the option I would not have pressed charges on him.

I have no desire for “Justice” as I’m sure he would do anything and everything he could to make sure we are doing well and able to thrive, and that seems more fair to me than taking him away from us. 2. Position of the parties a. Appellant on victims’ rights and leniency [ 51 ] For this ground, the appellant argues that the sentencing judge erred by not giving effect to his wife’s comments, and in that regard, he relies on the Canadian Victims Bill .

He makes specific mention of ss. 14, 15 and 25(1) of that Act as establishing the right of E and F to have addressed the court and for the sentencing judge to have acted upon the mother’s wishes. [ 52 ] He also relies on Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) , 2004 SCC 4 at paras 58 , 60, 62, 68 and 114, [2004] 1 SCR 76 [ Canadian Foundation for Children ], to support his claim that families should not be divided, and that the sentencing judge should have given effect to that principle in light of the victims’ wishes. b.

Crown on victims’ rights and leniency [ 53 ] Crown counsel asserts that victim impact statements for sentencing purposes are governed by s. 722 of the Criminal Code and not by the Canadian Victims Bill , and that their content has always been limited by the courts.

The Crown also relies on R v Dillon , 2022 SKCA 17 at paras 18 –​20, 92 MVR (7th) 214 [ Dillon ], for the proposition that the author of a victim impact statement does not have “the standing of an adversarial party to the sentencing hearing” (at para 20). [ 54 ] The Crown submits that statements containing opinions with respect to what the authors deem to be suitable punishments are inappropriate, as are comments about an offender’s character. The Crown would extend these principles to pleas for leniency and attestations of good character.

Speaking directly to this appeal, Crown counsel asserts that the sentencing judge could not, in any circumstances, have permitted E or F to speak. 3. Preliminary issues [ 55 ] Before deciding whether the sentencing judge erred by not giving effect to the mother’s request for leniency and by not hearing from E and F, it is necessary to consider two preliminary questions that are raised by the appellant’s submissions: (

a) Does the Canadian Victims Bill play a substantive role in the sentencing process? (

b) In what circumstances, if any, can a sentencing judge hear a plea of leniency from a child-victim of sexual abuse? a. The Canadian Victims Bill and the Criminal Code [ 56 ] The Canadian Victims Bill and the current provisions of the Criminal Code pertaining to such statements were enacted by the same statute of Parliament: Victims Bill of Rights Act , SC 2015, c 13 [ Victims Act ].The Canadian Victims Bill and the amendments to the Criminal Code provide comprehensive provisions dealing with the right of victims to give statements as to the harms caused to them by an offender.

I will review the applicable provisions. i. The Canadian Victims Bill [ 57 ] The Canadian Victims Bill confers rights on a victim . A victim is defined as “an individual who has suffered physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of an offence” ( s. 2 ). The key

provisions of that Act are as follows: Participation Views to be considered 14 Every victim has the right to convey their views about decisions to be made by appropriate authorities in the criminal justice system that affect the victim’s rights under this Act and to have those views considered . Victim impact statement 15 Every victim has the right to present a victim impact statement to the appropriate authorities in the criminal justice system and to have it considered. … Application 18

(1) This Act applies in respect of a victim of an offence in their interactions with the criminal justice system (

a) while the offence is investigated or prosecuted … . … Exercise of rights 19(1) The rights of victims under this Act are to be exercised through the mechanisms provided by law. …

Interpretation of this Act 20 This Act is to be construed and applied in a manner that is reasonable in the circumstances, and in a manner that is not likely to (

a) interfere with the proper administration of justice, including (

i) by causing interference with police discretion or causing excessive delay in, or compromising or hindering, the investigation of any offence, and (ii) by causing interference with prosecutorial discretion or causing excessive delay in, or compromising or hindering, the prosecution of any offence; (

b) interfere with ministerial discretion; (

c) interfere with the discretion that may be exercised by any person or body authorized to release an offender into the community; (

d) endanger the life or safety of any individual; or (

e) cause injury to international relations or national defence or national security.

Interpretation of other Acts, regulations, etc. 21 To the extent that it is possible to do so, every Act of Parliament enacted — and every order, rule or regulation made under such

an Act — before, on or after the day on which this Act comes into force must be construed and applied in a manner that is compatible with the rights under this Act. Primacy in event of inconsistency 22(1) If, after the application of sections 20 and 21, there is any inconsistency between any provision of this Act and any provision of any Act, order, rule or regulation referred to in

section 21, the provision of this Act prevails to the extent of the inconsistency . … Complaint — federal entity 25(1) Every victim who is of the opinion that any of their rights under this Act have been infringed or denied by a federal department, agency or body has the right to file a complaint in accordance with its complaints mechanism. Complaint to authority

(2) Every victim who has exhausted their recourse under the complaints mechanism and who is not satisfied with the response of the federal department, agency or body may file a complaint with any authority that has jurisdiction to review complaints in relation to that department, agency or body. Complaints mechanism

(3) Every federal department, agency or body that is involved in the criminal justice system must have a complaints mechanism that

provides for (

a) a review of complaints involving alleged infringements or denials of rights under this Act; (

b) the power to make recommendations to remedy such infringements and denials; and (

c) the obligation to notify victims of the result of those reviews and of the recommendations, if any were made. Complaint — provincial or territorial entity 26 Every victim who is of the opinion that their rights under this Act have been infringed or denied by a provincial or territorial department, agency or body may file a complaint in accordance with the laws of the province or territory. Status 27 Nothing in this Act is to be construed as granting to, or removing from, any victim or any individual acting on behalf of a victim the status of party, intervenor or observer in any proceedings.

No cause of action 28 No cause of action or right to damages arises from an infringement or denial of a right under this Act. No appeal 29 No appeal lies from any decision or order solely on the grounds that a right under this Act has been infringed or denied. (Emphasis added) ii. The Criminal Code amendments [ 58 ] Similar to the Canadian Victims Bill , the Criminal Code provisions added by the Victims Act confer rights on those who have the status of victim:

Definitions 2 In this Act … victim means a person against whom an offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of the offence and includes, for the purposes of sections 672.5, 722 and 745.63, a person who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person. [ 59 ]

Section 722 is the operative provision: Victim impact statement 722(1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under

section 730 in respect of any offence, the court shall consider any statement of a victim prepared in accordance with this

section and filed with the court describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim . Inquiry by court obligation

(2) As soon as feasible after a finding of guilt and in any event before imposing sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victim with an opportunity to prepare a statement referred to in subsection (1). Adjournment

(3) On application of the prosecutor or a victim or on its own motion, the court may adjourn the proceedings to permit the victim to prepare a statement referred to in subsection (1) or to present evidence in accordance with subsection (9), if the court is satisfied that the adjournment would not interfere with the proper administration of justice. Form

(4) The statement must be prepared in writing, using Form 34.2 in

Part XXVIII , in accordance with the procedures established by a program designated for that purpose by the lieutenant governor in council of the province in which the court is exercising its jurisdiction. Presentation of statement

(5) The court shall, on the request of a victim, permit the victim to present the statement by (

a) reading it; (

b) reading it in the presence and close proximity of any support person of the victim’s choice; (

c) reading it outside the court room or behind a screen or other device that would allow the victim not to see the offender; or

(

d) presenting it in any other manner that the court considers appropriate. … Consideration of statement

(8) In considering the statement, the court shall take into account the portions of the statement that it considers relevant to the determination referred to in subsection (1) and disregard any other portion. Evidence concerning victim admissible

(9) Whether or not a statement has been prepared and filed in accordance with this section, the court may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or whether the offender should be discharged under

section 730. (Emphasis added) [ 60 ]

Section 722.1 directs that a “clerk of the court shall provide a copy of a statement referred to in subsection 722(1), as soon as practicable after a finding of guilt, to the offender or counsel for the offender, and to the prosecutor”. b. Analysis of the regime that governs [ 61 ] The appellant insists on the primacy of s. 14 of the Canadian Victims Bill : “Every victim has the right to convey their views about decisions to be made by appropriate authorities in the criminal justice system that affect the victim’s rights under this Act and to have those views considered”.

He describes s. 14 as conferring an absolute right on victims, which means, in his submission, the sentencing judge erred by not considering and giving effect to his wife’s statement and by not hearing from E and F and accounting for their opinions. Flowing from this proposition, the appellant asserts that the failure to comply with s. 14 constitutes a material error in principle, which had an impact on the sentences imposed regarding the offences against E and F. The Crown takes the contrary view. [ 62 ] At its most basic, the issue the appellant raises is an exercise in statutory

interpretation. In that regard, the Victims Act is governed by s. 12 of the

Interpretation Act , RSC 1985, c I-21 , which states: “Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and

interpretation as best ensures the attainment of its objects”. Further, in R v McColman , 2023 SCC 8 , 478 DLR (4th) 577, the Supreme Court recently confirmed that in “determining the meaning of the text, a court cannot read a statutory provision in isolation, but must read the provision in light of the broader statutory scheme” (at para 35). In this case, the Court is interpreting the provisions of one federal enactment, i.e., the Victims Act , that enacted the Canadian Victims Bill and amended the Criminal Code . All of the provisions must be read together as harmoniously as possible to determine the meaning of the text in accordance with s. 12 of the

Interpretation Act . The Canadian Victims Bill and the Criminal Code amendments must not be read as being in tension but rather must be construed as complimenting each other. [ 63 ] With this principle in mind, I interpret the Canadian Victims Bill as deferring to the process that s. 722 of the Criminal Code establishes. In that regard, I observe that s. 19(1) of the Canadian Victims Bill limits and stipulates that the “rights of victims under this Act are to be exercised through the mechanisms provided by law”.

But the only mechanism for victims of crimes to exercise their rights in the sentencing context occurs under s. 722 of the Criminal Code . Further, s. 20 of the Canadian Victims Bill indicates it is to be interpreted “in a manner that is reasonable in the circumstances, and in a manner that is not likely to … interfere with the proper administration of justice”. That latter concept plays itself out within the parameters of the Criminal Code .

Finally, while ss. 25–26 of the Canadian Victims Bill provide for a complaint mechanism if a victim believes their rights have been violated or denied “by a federal department, agency or body” (s. 25) or an equivalent provincial entity (s. 26), there is no right of complaint from a decision of a court declining to hear from a victim or not giving effect to a victim impact statement.

There is only a right of appeal from the sentence itself and that right is exercisable by the offender and the Crown only and this only within the parameters of the Criminal Code . [ 64 ] While s. 14 of the Canadian Victims Bill on its face appears to confer absolute rights, it is s. 722(1) of the Criminal Code that guides sentencing courts. That

section also requires a sentencing judge to consider a victim impact statement for the purpose of “determining the sentence”. However, the content of the statement is restricted to a description of “the physical or emotional harm … suffered by the victim as the result of the commission of the offence and the impact of the offence” ( s. 722(1) ). [ 65 ] As well, s. 722(4) requires that statements be in writing using Form 34.2 in

Part XXVIII of the Criminal Code , also enacted by the Victims Act , which provides as follows: This form may be used to provide a description of the physical or emotional harm, property damage or economic loss suffered by you as the result of the commission of an offence, as well as a description of the impact of the offence on you . You may attach additional pages if you need more space.

Your statement must not include • any statement about the offence or the offender that is not relevant to the harm or loss you suffered; • any unproven allegations; • any comments about any offence for which the offender was not convicted; • any complaint about any individual, other than the offender, who was involved in the investigation or prosecution of the offence; or • except with the court’s approval, an opinion or recommendation about the sentence . (Emphasis added)

[66] Section 722(4) goes on to provide that Form 34.2 is to be used “in accordance with the procedures established by a programdesignated for that purpose by the lieutenant governor in council”. An order in council establishes both the program and proceduresrespecting victim impact statements for this province: “Designate Victims Services Program the Authority to Establish the ProceduresRespecting Statements of Victims and Statements by Individuals on a Community’s Behalf (Criminal Code)”, Minister of Justice andAttorney General, OC 401/2015.

Under that authority, the Minister of Justice and Attorney General has published a manual respecting thevictim impact statement process: Saskatchewan, Victim Impact Statement Program, Guidelines Manual for Criminal Justice SystemPersonnel in Saskatchewan (Regina: Victims Services Branch, Ministry of Justice, 2015).

That manual contains the following adviceabout how to prepare a victim impact statement: “A [victim impact statement] must be completed in the victim’s own words describingthe physical and/or emotional harm, property damage and economic loss suffered as a result of the commission of the offence and theimpact of the offence on the victim” (at J-2). [67] At the base of the appellant’s argument regarding the predominance of the Canadian Victims Bill is a belief that a victim hasthe right to favourably influence the result, as if the victim were a party to the sentencing process.

That particular issue, however, hasalready been addressed in Dillon, where Caldwell J.A. for the Court held that “[w]hile victim impact statements have a role to play in thesentencing process, they do not give their authors the standing of an adversarial party to the sentencing hearing” (at para 20).

Instead, theCrown “plays a role in ensuring that victim impact statements do not contain inappropriate comments and to advise the court accordinglywhere they do” (at para 25), which then allows “a sentencing judge, as the gatekeeper of the criminal process, to disregard inappropriateinformation that is included in a victim impact statement when considering an appropriate sentence” (at para 20). [68] Further, in R v B.P., 2015 NSPC 34 at paras 32–33, 325 CCC (3d) 300 [B.P.], Derrick P.C.J., as she then was, confirmed thatnothing in the Canadian Victims Bill changes the fundamental principle that victims are not parties in the sentencing process.

Speakingdirectly to the effect of s. 14 of the Canadian Victims Bill, she wrote as follows: [60] … I want to explicitly state that I regard

section 14 [of the Canadian Victims Bill] as having nothing to do with judicial decision-making.

Section 14 does not make it clear to whom victims are entitled to convey their views “about decisions” but it cannot be intendedto apply to judges and the sentencing process. It can no more be relevant at sentencing than at trial, another judicial decision-making phasein the criminal justice process. (Emphasis added) [69] In conclusion, both the Canadian Victims Bill and s. 722 of the Criminal Code indicate Parliament’s strong view that victimshave rights in the criminal justice system, but it is the latter Act that determines the ambit of those rights.

Both Acts confer rights onvictims, but neither Act gives a victim the right to influence sentence length by expressing a view about whether the offender should bepunished harshly or leniently. The victim has the right to describe the harm that they have suffered by the criminal act perpetrated againstthem and to do so in the manner delineated by the Criminal Code. c.

Pleas for leniency from victims of sexual abuse [70] Having concluded that the Criminal Code determines the rights of victims to participate in the sentencing process, I note againthat s. 722 provides when a sentencing judge shall and may consider a victim’s statement. Section 722(1) requires that the court “shallconsider any statement … prepared in accordance with this section” (emphasis added). Section 722(4) indicates that statements “must beprepared in writing, using Form 34.2 in

Part XXVIII”, but s. 722(9) provides that the court “may consider any other evidence concerningany victim of the offence for the purpose of determining the sentence to be imposed” (emphasis added). As noted above, Form 34.2provides that the statement “must not include … any statement about the offence or the offender that is not relevant to the harm or loss yousuffered”.

Further, it also indicates that the written statement must not include, “except with the court’s approval, an opinion orrecommendation about the sentence”. [71] The overall tenor of s. 722 and Form 34.2 confirms that a sentencing judge has the discretion to determine what is received, butthe focus is to be on the offence and the harm caused by it. On this point, Hill J., in R v Gabriel (1999), (ON SC), 137CCC (3d) 1 (Ont Sup Ct) [Gabriel], wrote as follows: [35] Impact statements should describe “the harm done to, or loss suffered by, the victim arising from the commission of the offence”.

Thestatements should not contain criticisms of the offender, assertions as to the facts of the offence, or recommendations as to the severity ofpunishment. … [39] Recommendations as to penalty must be avoided, absent exceptional circumstances, i.e. a court-authorized request, an aboriginalsentencing circle, or as an aspect of a prosecutorial submission that the victim seeks leniency for the offender which might not otherwisereasonably be expected in the circumstances. (Footnotes omitted) Gabriel predates the enactment of the Canadian Victims Bill, but it remains authoritative, and I agree with Hill J.’s observations. [72] Most of the jurisprudence since Gabriel addresses the need to avoid recommendations as to the severity of punishment: see R vG.(D.M.L.), at para 9 (Sask PC); R v Jackson (2002), (ON CA), 158 OAC 289 at para 51; R v Bell,2013 BCCA 463 at para 35, 344 BCAC 237; Dillon at paras 18–19; R v Beals, 2023 ONSC 555 at para 86; and B.P. at paras 43, 56–60and 70.

Exceptions exist in a sentencing circle context: for example, see R v S.R.J., 2001 YKSC 542 at para 32. [73] The law is less developed and less certain regarding when it is appropriate for a sentencing judge to hear submissionsdownplaying the harm caused or requesting leniency. Clayton C. Ruby, in Sentencing, 10th ed (Toronto: LexisNexis, 2020) [Ruby], in hisdiscussion of victim impact statements, writes that “[v]ictims are also entitled to express their views about the offender and theappropriate sentence when the victim is supportive of the offender” (at §19.35).

He cites a number of decisions as authority for that

proposition, including paragraph 39 from Gabriel. Most of this jurisprudence is derived from the domestic context and usually containscautionary comments regarding the possibility of coercion. Ruby warns that “[i]n any case in which a victim argues for a lesser sentence,the court must be alert to the possibility that the victim is being pressured by the accused or others to take such a position, and this is aparticular concern where the victim is a member of the accused’s family” (at §19.37, citing R v R.G., 2003 NLCA 73, 232 Nfld & PEIR273 [R.G.]).

By way of an example, Ruby cites R v Somers, 2021 BCCA 205, where Griffin J.A., undertaking a fresh sentencing onappeal, noted the little weight that should be allocated to a victim’s letter in support of the accused: [79] I am not able to give much weight to the fact that the complainant wrote a letter suggesting that she is at fault and expressing a needfor the respondent to be back in her and their children’s lives. An earlier letter by her acknowledged the respondent’s abuse and its toll onher.

The more recent letter has to be understood in the context of the history of the complainant and the respondent, which make it clearthat the complainant has been vulnerable in the past to manipulation by the respondent, and she has not consistently been able toobjectively judge the chronically abusive nature of their relationship. The psychiatric assessment of the respondent emphasizes the highrisk of the complainant being revictimized. Notably, the accused had been convicted of obstruction of justice precisely for attempting to manipulate the complainant against whom hehad perpetrated acts of domestic violence.

Nevertheless, the British Columbia Court of Appeal did not reject out of hand the admissibilityof the letter asking for less time in custody. [74] Similarly, in R v Guerrero Silva, 2015 QCCA 1334, 22 CR (7th) 339, it was observed that a “victim’s wish not to separate thefather from his child may be a factor” and “some jurisprudence recognizes that a pardon granted by an adult victim is one of the relevantfactors in sentencing” (at para 71, referencing R.G. at para 6, unofficial translation).

However, I note that in Guerrero Silva, the Court ofAppeal increased a sentence for numerous offences of domestic and other violence against the victim, notwithstanding her plea forleniency. [75] The situation of a victim of childhood sexual abuse, who is now a young adult, imports special considerations, particularlywhere the victim continues to reside in the family home prior to sentencing.

However, there is little current jurisprudence on point: see, forexample, R v Clayton (1982), (ON CA), 69 CCC (2d) 81 (Ont CA), and R v R.P.T., 1983 ABCA 175 , [1983]5 WWR 558 (Alta CA), both of which are cited in Ruby. [76] In my view, these older authorities must be viewed with scepticism post-Friesen and in light of the current mandatory minimumsentences for sexual offences against children. The better approach is typified by such post-Friesen decisions as R v C.M., 2021 ONCJ472, where the mother testified on behalf of the offender in the course of the sentencing hearing.

She downplayed the incidents of sexualassault and said that the children, aged three and five, had forgiven their father and wanted him to come home. The judge gave no weightto this evidence. He took it as demonstrating a further mistreatment of the children and evidence that “[n]o one … [was] taking the harmthat has been done to them seriously” (at para 59).

After quoting key passages from Friesen, a global sentence of nine years was imposed. [77] The Criminal Code does not establish a principle of sentencing that requires a sentencing judge to take into account pleas forleniency made in relation to sentencing for sexual offences against children. Indeed, a plea for a reduced sentence is contrary to s. 718.01and s. 718.2(a), which stress denunciation and deterrence and the aggravating factors deemed to be associated with such offences.

For easeof reference, those provisions provide as follows: Objectives — offences against children 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 giveprimary consideration to the objectives of denunciation and deterrence of such conduct. … 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 orthe offender, and, without limiting the generality of the foregoing, (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or theoffender’s family, (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, includingtheir health and financial situation … . [78] Reading the Victims Act and the above provisions together, it would not be appropriate to conclude that Parliament intended asentencing judge, at the request of the defence, to give effect to a child-victim’s statement or a statement from that child’s parent, askingfor a reduction of what would otherwise be a fit sentence for sexual offences, on the basis that no harm or no significant harm had beencaused by the criminal actions of the perpetrator.

These provisions embody the principle that a parent who has sexually abused their childhas caused significant harm. [79] The foundation of Friesen is that sexual abuse of children causes multiple forms of harm. Friesen identified two principles, inparticular, that are relevant here. First, a young victim of even a single instance of sexual abuse can endure serious emotional andpsychological harm throughout childhood and into adulthood. The severity of that harm may not be apparent to the victim until long afterthe offence was committed and a sentence determined.

Second, in cases where the offender is a parent of the young victim, other family

members may take the side of the offender, disbelieve the victim or otherwise minimize the severity of the offence. Together with thefundamental breach of trust inherent in a sexual offence committed by a parent against their child, this magnifies the risk that the youngvictim will endure further trauma and develop a loss of trust in the people and communities they know.

Placing the burden upon theshoulders of such a young victim to play any role in the mitigation of a sentence is anathema to these principles. [80] In Friesen, the Supreme Court examined those principles, while expounding upon the contemporary understanding of sexualviolence against children, which modern-day sentencing must reflect: (a) “Sexual violence against children can cause serious emotional and psychological harm that, as this Court held in R. v.McCraw, (SCC), [1991] 3 S.C.R. 72 [at 81], ‘may often be more pervasive and permanent in its effect than any physicalharm’” (Friesen at para 56); (b) “Sexual violence can interfere with children’s self-fulfillment and healthy and autonomous development to adulthoodprecisely because children are still developing and learning the skills and qualities to overcome adversity” (at para 58) – “For this reason,even a single instance of sexual violence can ‘permanently alter the course of a child’s life’” (at para 58, quoting R v Stuckless, 2019ONCA 504 at para 136, 376 CCC (3d) 294 [Stuckless]); (c) “Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers.Because much sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trustrelationship (R. v.

D.R.W., 2012 BCCA 454, 330 B.C.A.C. 18, at para. 41).

If a parent or family member is the perpetrator of the sexualviolence, the other parent or family members may cause further trauma by taking the side of the perpetrator and disbelieving the victim”(Friesen at para 60) – “Frequently, child victims make ‘valiant and repeated efforts to have someone believe their allegations’” (atpara 59, quoting Isabel Grant and Janine Benedet, “The ‘Statutory Rape’ Myth: A Case Law Study of Sexual Assaults against AdolescentGirls” (2019) 31:2 Can J Women & L 266 at 292). (d) “The ripple effects can cause children to experience damage to their other social relationships.

Children may lose trust in thecommunities and people they know” (Friesen at para 61); (e) “During childhood, in addition to the inherent wrong of interference with their bodily integrity, children can experiencephysical and psychological harm that persists throughout their childhood (Woodward, [2011 ONCA 610] at para. 72; Non-MarineUnderwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, at para. 123, per Iacobucci J.).

These forms of harm canbe so profound that children are ‘robbed of their youth and innocence’” (Friesen at para 80, quoting R v D.(D.) (2002), (ON CA), 157 OAC 323 (CA) at para 10); and (f) “Sexual violence against children also causes several forms of long-term harm that manifest themselves during the victim’sadult years” (at para 81). [81] Pleas for leniency from a parent of sexually abused children, and from the children themselves, even if they are now matureteenagers, are not consistent with the principles of sentencing contained in the Criminal Code or with Friesen.

A child victim of sexualabuse or their non-offending parent cannot be expected to know the sentencing objectives and principles or to speak in their terms. Thatmeans that when statements are offered by them on behalf of an offender that are contrary to those principles, the sentencing judge mustview such remarks with caution and test them against what is now the law in Canada, with denunciation and deterrence as the primaryobjectives for sentencing sexual abusers of children.

It remains to apply these principles to the question of whether the sentencing judgeerred in the handling of the family’s statements in this case. 4. No error by not giving effect to the mother’s oral remarks [82] The victims’ mother undoubtedly has suffered as a result of her husband’s actions, and, by virtue of the definition of victim inthe Criminal Code, she is “a person who has suffered physical or emotional harm” (s. 2).

As such, the sentencing judge was obliged tocomply with s. 722(2) and “inquire of the prosecutor if reasonable steps [had] been taken to provide the victim with an opportunity toprepare a statement referred to in subsection (1)”. According to the record, the sentencing judge did not make that inquiry. The recordshows that the mother indicated that she and her daughters had provided statements in writing to Victim Services. [83] In light of s. 722(2), it would have been preferable for the sentencing judge to have made inquiries and to have asked forsubmissions as to what had happened to those statements.

However, nothing turns on the sentencing judge’s omission to inquire aboutthem. [84] Having heard the mother’s statement, the sentencing judge clearly did not fall into error by giving it no weight. Like theproffered fresh evidence from the child-victims, the mother’s statement downplayed the known harms that had been caused by theappellant and was inconsistent with the sentencing considerations applicable to the sentencing of someone who has sexually abused theirchildren. 5. No error by not letting E and F speak [85] E and F are also clearly victims according to the definition of the word in the Criminal Code.

Offences were committed againstthem and they suffered harm. As with the mother, it would have been preferable for the sentencing judge to have made inquiries anddetermined whether what was being sought was an adjournment or some other solution. However, in my view, nothing turns on this,either.

The real issue is whether the sentencing judge erred in principle by not permitting E and F to speak. [86] The sentencing judge did not give any reasons for dismissing the appellant’s request to allow E and F to address the Court, buthe did not err by so refusing. [87] At an appellate level, it is difficult to judge the dynamics of any sentencing hearing. Matters were complicated here because R,as a victim of the same type of abuse perpetrated against E and F, provided a lengthy and moving victim impact statement, wherein she

spoke of the continuing trauma of the offence that had been committed upon her. In addition, the court had seen and heard the videostatement of E, which had been given two years before. Further, defence counsel did not raise the question of possible statements from thefamily members with the court until he was in the middle of his submissions.

He also did not ask for an adjournment to produce thosestatements. [88] Further, in the concrete reality present here, the sentencing judge would have had a general idea as to what E and F would say,which would have been to downplay the offences and to ask for leniency for the appellant (thus sidestepping Form 34.2’s “except with thecourt’s approval, an opinion or recommendation about the sentence” directive). He knew the mother’s position because he had allowedher to speak, and it was the defence that suggested the Court hear from E.

Further, a pre-sentence report had been prepared, whichincluded the statement in the victim information

section that E and F “do not want any no contact conditions placed on [the appellant]upon his eventual release from jail as the family hopes to be able to put the offences behind them and reunite again” (at 7). [89] In such circumstances, I cannot say that the sentencing judge erred and, clearly, he did not commit an error in principle that hadan impact on the sentences imposed in relation to the offences against E or F. The sentencing judge would have been in error if he hadpermitted R to advocate for a harsher sentence and if he had acted on such submissions.

Similarly, he would have erred if he had allowedE to address him and reduced what would otherwise have been a fit sentence. [90] As indicated above, statements from victims of sexual abuse, who are still resident in the family home with the offender andwho now call for leniency, should be approached with extreme caution, if accepted at all.

As Hill J. said in Gabriel, and I repeat, asentencing judge should avoid hearing from victims respecting recommendations as to penalty “absent exceptional circumstances, i.e. acourt-authorized request, an aboriginal sentencing circle, or as an aspect of a prosecutorial submission” (footnotes omitted, at para 39). Onthis point, see Julian V. Roberts, “Victim Impact Statements and the Sentencing Process: Recent Developments and Research Findings”(2003) 47:3 Crim LQ 365. Here, the Crown’s position could not have been clearer: it was inappropriate to hear a request for leniency fromthe child victims.

Permitting victims of childhood sexual abuse to advocate for leniency is strongly discouraged as doing so risksundermining the very principles upon which Friesen stands and which Parliament has directed the courts to consider. [91] Finally, I note that putting forward statements that do not comply with Form 34.2, which these clearly did not, is a practice thatshould be discouraged by the courts. An oral statement that gives the Crown or the defence no time to react is not an ideal practice. Thereis a reason for the form.

Its use better ensures that non-permissive material is not included: for example, an unsolicited recommendation onsentencing or information not related to the harms caused by the offence.

If the sentencing judge had said he was not going to allow E toread an oral statement on the basis that it was not prepared in accordance with Form 34.2, he could not have been faulted, notwithstandinghis ability to receive evidence of harm in another format. [92] The most important point, however, is that if a sentencing judge cannot give effect to a child-victim’s request for leniency byreducing a sentence to account for it, the refusal to hear from the victim cannot be an error in principle, let alone one that could have hadan impact on the sentence. [93] In short, there is no merit to this ground of appeal. 6.

Fresh evidence: Affidavits of E and F [94] In Barendregt v Grebliunas, 2022 SCC 22, 469 DLR (4th) 1, the Supreme Court affirmed the applicability of the four-part testfrom R v Palmer, (SCC), [1980] 1 SCR 759, and applied in R v Lévesque, 2000 SCC 47, [2000] 2 SCR 487. The SupremeCourt in Barendregt

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