WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

COURT OF APPEAL FOR ONTARIO

DATE: 20210608 DOCKET: C68889

Hoy, Hourigan and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen Applicant (Appellant)

and

T.J. Respondent

Counsel: Erica Whitford and Madeline Lisus, for the appellant, the Crown Wayne A. Cunningham, for the respondent

Heard: May 7, 2021 by videoconference

On appeal from the sentence imposed on November 10, 2020 by Justice Alexander D. Kurke of the Superior Court of Justice.

Zarnett J.A.:

I. INTRODUCTION

[1] As a result of a complaint to the police in 2017, the respondent was charged with sexual interference, invitation to sexual touching, and sexual assault against C.M., a child. The offences occurred on one occasion in 2010 or 2011 when C.M. and her brother were at the respondent’s home for a sleepover with his sons. At the time, C.M. was six or seven years old.

[2] The trial judge found that late at night, the respondent directed C.M. into the bathroom. He took her hands and placed them on his penis. He used C.M.’s hands to rub his penis, which became aroused, telling her that “this is how you do it”. This went on for a few minutes; the respondent then told C.M. that she could put her mouth on his penis. At that point, C.M. pulled away and left the room.

[3] The trial judge convicted the respondent of all three offences. He conditionally stayed the sexual interference and invitation to sexual touching convictions. On the sexual assault conviction, he imposed a sentence of 9 months in custody, followed by two years probation. He also made certain ancillary orders.

[4] The Crown seeks leave to appeal the sentence arguing that the 9-month sentence failed to recognize and reflect the inherent wrongfulness and harmfulness of the respondent’s conduct and is demonstrably unfit. The Crown asks that a two-year sentence be imposed.

[5] For the reasons that follow, I would grant leave to appeal and allow the appeal. The trial judge erred in principle and imposed a sentence that was demonstrably unfit. I would increase the period of incarceration to 24 months.

[6] Based on the fresh evidence, it would not be in the interests of justice to reincarcerate the respondent who has completed the custodial sentence the trial judge imposed; accordingly, I would stay the execution of the additional sentence.

II. The Sentencing Decision

[7] In deciding an appropriate sentence, the trial judge noted several matters about the respondent and his circumstances:

• he had no prior criminal record;
• he was a devoted father and a supportive ex-spouse;
• he had previously been arrested for the domestic assault of another woman, but the matter was diverted upon his completion of the Partner Assault Response course;
• he was in a new relationship and has helped to raise two children (in addition to his children from a prior relationship);
• he has a history of substance use, for which he has attended counselling;
• he had been on bail for three years without any concerns; and
• he had worked for his father over a lengthy period.

[8] The trial judge referred to the principles in s. 718 of the Criminal Code of Canada, R.S.C., 1985, c. C-46 and in R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1. He noted that C.M. was “very youthful” and “very vulnerable” vis-à-vis the respondent, who was “clearly and undoubtedly in a position of trust” over her. The trial judge also referred to the victim impact statement by C.M.’s mother which discussed the stress of court proceedings “and the difficulties that [C.M.] has faced in dealing with this incident and its sequelae…”. He also observed that the respondent had not expressed any remorse.

[9] The trial judge explained that the principles of denunciation and deterrence required him to reject the defence request for a conditional sentence of 9-12 months:

there was sexual interaction with a young child by a person in a position of trust. The public, quite frankly, would be shocked if a jail sentence was not imposed, but they would understand that the pro-social conduct of [the respondent] and the risks of COVID-19 in jail cannot be entirely disregarded. Proportionality has to be considered. Those factors have to be taken into account in the individualized process of sentencing.

[10] The trial judge concluded that if not for “so many things that speak in [the respondent’s] favour” and COVID-19, an appropriate sentence would have been 15-24 months. However, he would not impose a sentence that would keep the respondent from resuming being a contributing member of society – that would be “crushing”. The trial judge settled on 9 months in custody, and in so doing, rejected the Crown’s request for a period of incarceration between 18 months and 3 years.

III. The Parties’ Positions

[11] The appellant argues that the trial judge:

1. failed to give meaningful effect to Friesen;
2. improperly overemphasized mitigating factors;
3. erred in reducing the sentence based on COVID-19; and
4. imposed a demonstrably unfit sentence.

[12] The appellant asks that a sentence of two years incarceration be substituted.

[13] The respondent submits that the trial judge made no error of law or principle that affected the sentence and that the sentence imposed is not demonstrably unfit. He also seeks to introduce fresh evidence. The Crown does not oppose this request. The fresh evidence indicates that the respondent has completed his custodial sentence and has been granted full parole, effective February 9, 2021. The respondent submits that even if this Court increases the sentence, it should stay any additional period of incarceration, as it would not be in the interests of justice to reincarcerate him.

IV. Analysis

A. When is Appellate Intervention in a Sentencing Decision Warranted?

[14] The standard of review applied to a sentencing decision was reaffirmed in Friesen: “[A]n appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit or (2) the sentencing judge made an error in principle that had an impact on the sentence”: at para. 26.

[15] A sentence is demonstrably unfit if it is clearly unreasonable, clearly excessive or inadequate, or if it represents “a substantial and marked departure from the fundamental principle of proportionality”: R. v. Lis, 2020 ONCA 551, 152 O.R. (3d) 125, at paras. 43, 69. If a sentence is demonstrably unfit, or if the sentencing judge made an error in principle that had an impact on the sentence, we must perform our own sentencing analysis to determine a fit sentence using the applicable sentencing principles but deferring to the sentencing judge’s findings of fact and identification of aggravating and mitigating factors, except to the extent they are affected by an error in principle: Lis, at para. 44.

B. Was the Sentence in this Case Demonstrably Unfit or Affected by Errors in Principle?

[16] I agree with the Crown that the sentence imposed by the trial judge reflects errors in principle and was demonstrably unfit. That result follows directly from Friesen.

(1) Friesen’s Message

[17] In Friesen, the Supreme Court of Canada sent a strong message that:

sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large. [Emphasis added.]: at para. 5.

[18] Three parts of the message in Friesen are relevant here: (1) the importance of properly considering the wrongfulness and harmfulness of sexual offences against children in determining a proportionate sentence; (2) the priority given by Parliament to the sentencing objectives of denunciation and deterrence for these offences; and, (3) the guidance given on the length of sentences for these offences.

Wrongfulness, Harmfulness and Proportionality

[19] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender – this is the fundamental principle of sentencing. As Friesen explains, the wrongfulness and harmfulness of sexual offences against children are pivotal to both aspects of the assessment of proportionality: at para. 75.

[20] When considering the gravity of the offence, “courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences” (emphasis added): at para. 76.

[21] The inherent wrongfulness of sexual offences against children flows from the violent and exploitative nature of the conduct:

any physical contact of a sexual nature with a child always constitutes a wrongful act of physical and psychological violence…Courts must always give effect to this inherent violence since it forms an integral component of the normative character of the offender’s conduct [emphasis added.]: at para. 77.

[22] And, since it is always inherently exploitative for an adult to apply physical force of a sexual nature to a child, courts “must always give effect to the wrongfulness of this exploitation in sentencing” (emphasis added): at para. 78.

[23] The harm caused by sexual offences against children must be weighed “in a manner that reflects society’s deepening and evolving understanding of their severity”: at para. 74. This includes considering, in addition to actual harm that may have been experienced up to the time of sentencing, the reasonably foreseeable potential harm that may only materialize later in childhood or in adulthood. To do otherwise would falsely imply that children simply outgrow the effects of sexual offences against them: at paras. 84-86.

[24] These elements of wrongfulness and harm pertain as well to 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.

The fact that the victim is a child increases the offender’s degree of responsibility…the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable [1]: at paras. 88, 90.

Parliament Gives Primacy to Denunciation and Deterrence

[25] Section 718.01 of the Code gives priority to denunciation and deterrence over other sentencing objectives where the offence involves the abuse of children.

[26] A sentence expresses denunciation by condemning “the offender for encroaching on our society’s basic code of values”; it expresses deterrence by “discouraging the offender and others from engaging in criminal conduct”. Considerations of general deterrence lead to an offender being punished more severely than he or she might otherwise deserve in order to send a message to others: Lis, at para. 55.

[27] The provisions of s. 718.01 not only mean that denunciation and deterrence must be the primary objectives of the sentence, but that “it is no longer open to a sentencing judge to elevate other sentencing objectives, for example rehabilitation, to equivalent or greater priority than denunciation and deterrence in determining a proportionate sentence”. These other objectives may be given significant weight, but not priority or equivalency: Lis, at paras. 47-48, 53; Friesen, at paras. 101-4.

[28] As the court in Friesen concluded, prioritizing the objectives of denunciation and deterrence “confirms the need for courts to impose more severe sanctions for sexual offences against children”: at para. 101. That need is directly related to the form of sanction required, as separation from society reinforces and gives practical effect to denunciation and deterrence: at para. 103.

The Length of Sentences

[29] To ensure that effect is given to the wrongfulness and harmfulness of sexual offences against children and Parliament’s sentencing initiatives, Friesen provided guidance about the appropriate length of sentences. To follow that guidance, upward departure from prior precedents and sentencing ranges may be required: at paras. 108-14.

[30] While noting that judges must retain the flexibility to do justice in individual cases, Friesen conveyed an overall message 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. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim…: at para. 114.

[31] Friesen also re-emphasized the importance of certain aggravating factors in sexual offences involving a child. It noted that abuse of a position of trust or authority should usually result in a higher sentence than one of an offender who is a stranger to the child, and that the age of the victim is a significant aggravating factor because of the length of time they must endure the consequential harm of sexual violence: at paras. 130-34.

(2) The Trial Judge Made Errors in Principle That Impacted the Sentence

[32] In my view, the reasons as a whole do not give the inherent wrongfulness of the conduct, its highly morally blameworthy nature, and the extent of harm caused to C.M., the centrality that Friesen demands in sentencing. Nor do the reasons give paramountcy to the principles of denunciation and deterrence. Those errors impacted the sentence and justify appellate intervention.

[33] Where the overall focus of a sentencing decision is on the personal circumstances of the offender and the need for restraint, so as to underestimate the gravity of the offences and their harm, the sentencing decision is not consonant with Friesen’s message. As Spivak J.A. stated in R. v. S.A.D.F., 2021 MBCA 22:

The sentencing judge stated that the offending behaviour was serious, and referred generally to the harmful consequences of this type of abuse, and the need to send a message to protect children. However, as indicated in Friesen, it is not sufficient to simply state that sexual offences against children are serious; sentences imposed must reflect the normative character of the offender’s actions and the consequential harm. The sentencing judge spoke, at some length, about the accused’s background and the principle of restraint. Yet, there was little comment on the specifics of these offences and the circumstances under which they were committed, beyond saying that the children were very young and the accused was in a position of trust. In my view, the sentencing judge’s focus on the personal circumstances of the accused, rather than the circumstances of the offences, led her to unreasonably underestimate the gravity of the offences and the paramount principles of denunciation and deterrence: at para. 34.

[34] That is what occurred here.

[35] Although the trial judge referred briefly to the circumstances of the offence, C.M.’s young age, and the respondent’s position of trust, he paid particular attention to the personal circumstances of the respondent. He made a brief reference to the harm C.M. suffered, and no reference to the harm she may continue to suffer, from the inherently violent and exploitative conduct to which the respondent subjected her. Conversely, he emphasized the consequences the respondent would suffer from a significant custodial sentence.

[36] The trial judge relied on the respondent’s circumstances including that he was a first offender who was supportive of and supported by his family. He also expressed a desire not to impose a sentence that would prevent the respondent from being a contributing member of society and considered the effect of the pandemic.

[37] The trial judge was entitled to give “significant weight” to the sentencing principles those circumstances engage, but he was not entitled to give them priority, or even equal weight, to denunciation and deterrence: Friesen at paras. 101-4; Lis at paras. 47-48. He was also entitled to consider the pandemic as a collateral consequence, because it bears on the impact of the sentence on the offender. He was not, however, entitled to permit it to reduce a sentence to one that is disproportionate to the gravity of the offence or the moral blameworthiness of the offender: R. v. Morgan, 2020 ONCA 279, at paras. 10-11. As this court noted in R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, at para. 76, the focus of sentencing an adult who has exploited an innocent child should be on the harm caused to the child and the offender’s conduct; the effects of the sentence on the offender and his prospects for rehabilitation, while warranting consideration, cannot take precedence.

[38] Here, the trial judge allowed these considerations to take precedence and reduce the sentence below what was appropriate. The trial judge stated that a sentence between 15 to 24 months in custody would have been appropriate, which I take to mean appropriate given the gravity of the offence and the moral blameworthiness of the offender. But he was not prepared to impose a sentence in that range. Instead, he relied on these considerations to reduce the sentence by 15 months from the top, and 10.5 months from the midpoint, of his range – in either case by an amount greater than the length of the sentence he did impose – resulting in a sentence significantly below the low point of what he deemed appropriate.

[39] The result reached by the trial judge does not comport with the guidance in Friesen as to the length of sentences. Friesen does not simply contain a list of principles and factors to be mentioned in a sentencing decision; it insists that those factors be reflected in a sentence that is of sufficient length to recognize them. I repeat Friesen’s guidance: “mid-single digit penitentiary terms for sexual offences against children are normal…substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim”: at para. 114.

[40] The trial judge did not explain why the sentence he imposed could be considered substantial. He began with a range which, at its high end, was the lowest possible penitentiary term. He then imposed a sentence substantially reduced even from that range.

[41] For these reasons, I conclude that the trial judge erred in principle and that the errors had an impact on the sentence he imposed.

(3) The Sentence Was Demonstrably Unfit

[42] A sentence may be demonstrably unfit if it was required, but fails, to respect the primacy of the sentencing objectives of denunciation and deterrence. Such a sentence is a substantial and marked departure from the principle of proportionality: Lis, at paras. 98-99. This sentence suffers from that flaw.

[43] The respondent relies on R. v. R.L.S., 2020 ONCA 338, where this court dismissed an appeal against a nine-month sentence for a 51-year-old first-time offender convicted of sexual offences against his 4 to 6 year-old daughter.

[44] R.L.S. does not assist the respondent. In that case, the issue was whether the sentence was too harsh. In explaining why it was inappropriate to reduce the sentence, the court noted that the sentence was “lenient in light of the principles explained in R. v. Friesen.” : at para. 9. The court was not required to consider the question of whether the sentence was so lenient that it was unfit – the issue here.

[45] In my view, the sentence imposed was demonstrably unfit.

C. What is the Appropriate Sentence?

[46] The respondent’s behaviour was inherently wrongful. He abused his position of trust over a young child. His conduct included not only sexual touching but an invitation that C.M perform fellatio. It was highly morally blameworthy. His conduct was violent, exploitative, and harmful to C.M. and her family.

[47] Giving priority, as is required, to the objectives of deterrence and denunciation, a substantial sentence of incarceration is required. I would set that period at 24 months. Doing so gives weight (but neither priority nor equality) to the other factors the trial judge took into account, and maintains the two-year probation order that the trial judge imposed.

D. Should the Respondent be Reincarcerated?

[48] As I would increase the respondent’s sentence, the controlling question becomes whether it is in the interests of justice for him to be reincarcerated: R. v. Cheng (1991), 50 O.A.C. 374 (C.A.), at para. 5.

[49] I would admit the fresh evidence on this issue. The respondent has served the custodial portion of his sentence and has been released into the community by the Parole Board, in part on the basis that treatment available to him there, which will advance his reintegration, surpasses that available to him in custody, and in part based on his low risk of re-offending. These considerations, along with the likelihood of early parole if there were reincarceration and the recognition that reincarceration would impose considerable additional hardship, lead to the conclusion that the interests of justice do not require reincarceration in this case: R. v. Davatqar-Jafarpour, 2019 ONCA 353, 146 O.R. (3d) 206, at paras. 50, 53-54.

V. CONCLUSION

[50] Accordingly, I would grant leave to appeal, allow the sentence appeal, and substitute a custodial sentence of 24 months. The other terms of the sentence imposed by the trial judge should remain in effect. I would stay the execution of the balance of the sentence of incarceration not yet served.

Released: June 8, 2021 “A.H.” “B. Zarnett J.A.” “I agree. Alexandra Hoy J.A.” “I agree. C.W. Hourigan J.A.”

[1] Moral culpability may be reduced in specific cases, such as for person who suffer from mental disabilities or where systemic and background factors played a role in bringing an Indigenous person before the court: Friesen, at paras. 91-92.