Court File and Parties

Ontario Court of Justice

Date: January 19, 2023 Court File No.: 21 81400124

Between:

His Majesty the King, Applicant

— And —

B.M., Respondent

Publication Ban: S. 486.4(1)

Before: Justice Angela L. McLeod

Counsel: Katherine Spensieri, for the Crown Mitch Eisen, for the accused

McLeod J.:

Overview

[1] On the morning of trial, Mr. B.M. entered a guilty plea to one count; that, between the 4th of November 2015 and the 3rd of November 2016, at the Township of Springwater, he did commit a sexual assault on E.N., contrary to s. 271 of the Criminal Code.

[2] The Crown proceeded by way of Indictment.

[3] An agreed statement of fact was filed as Exhibit #1 on sentencing.

[4] A presentence report was ordered, and sentencing was adjourned accordingly.

Summary of the Facts

[5] Briefly:

(1) Mr. B.M. was a long-time employee of E.N.’s family business.

(2) The family business is located on the same property as the family home.

(3) When E.N. was 12 years of age, she began working at the family business.

(4) E.N. developed an “innocent crush” on the defendant, who was approximately 30 years of age at the time. The parties exchanged text messages, from time to time. The defendant began making sexual advances toward E.N.

(5) When E.N. was 15 years of age, and the defendant 33-34 years of age, she performed fellatio upon him on three separate occasions. On one such occasion, the act was performed in the front seat of the company truck while the defendant and the complainant were on route to an employment related delivery. While driving, the defendant noticed E.N.’s father driving toward them and said, “quick, your dad’s coming”, urging her to sit up. Another incident occurred in the company office. The third occurrence took place by the screening area of the business.

(6) Additionally, the parties engaged in one incident of vaginal intercourse, on the couch located in the company office. The defendant did not wear a condom.

(7) The parties agreed to “keep this quiet”.

(8) The interactions stopped. E.N. began a course of counselling. Sometime later she disclosed these incidents to her mother.

Circumstances of the Defendant

[6] Mr. B.M.’s criminal record was filed as Exhibit #2. He has one conviction, in 2013, for an ‘over 80’ offence.

[7] A presentence report was filed as Exhibit #4. The salient facts can be summarized as follows:

(1) Mr. B.M. endured physical and emotional abuse at the hands of his father that at times was described as excessive.

(2) His mother died from cancer when he was 17 years old.

(3) One of his three siblings died in a workplace vehicle accident in 2001. He maintains a ‘distant yet civil relationship’ with his other two siblings.

(4) Both of his children reside with their mothers. He describes his relationship with them as ‘fantastic’.

(5) He has been dating his current girlfriend since 2020. He describes their relationship as ‘fantastic’.

(6) He has been working at a local lumber and hardware store since 2021 and is the yard manager. He is a valued employee.

(7) Mr. B.M. does “not feel that the use of alcohol or any form of illicit narcotic to have ever posed an issue within his life and did not believe himself to be a suitable candidate for any form of formal programming.”

(8) His sister, ex-wife and girlfriend confirm a lack of concern re narcotics, but each raised a concern about his alcohol use, which is described as ‘daily’. This highlights a concern about whether Mr. B.M. truly understands the issues that he faces or whether he is attempting to downplay the seriousness of his alcohol use to his benefit in this proceeding.

(9) He expressed remorse and shame to the PSR author.

(10) His girlfriend expressed a desire to continue in their relationship and expressed a belief that Mr. B.M. “was not actively pursuing the victim in this matter and that he was only accommodating her advances.”

[8] For reasons unknown to this court, the author of the PSR invited the arresting officer to offer an opinion as to the appropriate sentence. This is wholly inappropriate, not relevant and has not been considered in any manner.

[9] Additionally, the PSR author opined about any sexual deviancy that Mr. B.M. may or may not be dealing with, offering a diagnosis without the expertise to do so. Again, this is wholly inappropriate, not relevant and has not been considered in any manner.

Victim Impact Statement

[10] E.N.’s victim impact statement was filed as Exhibit #3. Her words were poignant and insightful. The impact upon her has been great. She has suffered with depression that required medication. She has endured panic attacks and sleepless nights. She has difficulties trusting others. She struggles with forming healthy relationships. Therapy has helped and she noted that her “anxiety decreased, I developed self-awareness, I began having self-confidence, and most importantly, I started loving myself.”

[11] E.N.’s progress and development does not erase the struggles that she has faced. She wrote:

While I am now in a healthier place in my life to be able to recognize the positive aspects of it and in my life, what this individual did to me is wrong. This individual had no right to take advantage of a child. This individual had no right to forever change my life for his own selfish gratification. While it is not up to me to determine how this person will be punished, my ask of the court is to ensure whatever punishment granted, is granted in a manner that acknowledges the damage this individual as caused, and not reward any positive outcomes that may have been acknowledged by me in my statement. I am and will forever be a victim of this individual’s actions.

Position of the Parties

[12] The Crown’s position is a custodial sentence of 2 years less one day, to be followed by 2 years probation, a s. 109 order for 10 years, a DNA order, a SOIRA order for 20 years and a s. 743.21 order.

[13] The Crown submits that but for the guilty plea, a position of 4 years custody would have been sought.

[14] The Crown argues that the over arching principles of sentencing are rehabilitation, proportionality, parity, restraint, denunciation, specific and general deterrence.

[15] The Crown made reference to a number of cases, relying heavily on R. v. Friesen, 2020 SCC 9.

[16] The Crown argues that factually the defendant was in a position of trust toward the complainant and that this is an aggravating fact. The Crown relies upon R. v. D.D., 2002 ONCA 1061 paragraph 24.

[17] The Crown argues that each of the cases relied upon by the defence were decided pre- Friesen and should be given little to no weight.

[18] The defence submits that a custodial sentence of 12-15 months is appropriate and is not seeking a conditional sentence order as per their negotiations with the Crown. As such, the defence submits that the parties are jointly submitting that a penitentiary sentence is inappropriate. The defence acknowledges that 12-15 months custody is at the low end of an appropriate range for the facts in this case.

[19] The defence submits that Mr. B.M. had wanted to resolve all along, but the parties could not work out the facts. As such, this court should not heavily weigh the fact that the plea took place on the morning of trial. I agree.

[20] The defence submits that the complainant engaged voluntarily, and as such this court cannot find as an aggravating factor that she was physically forced to participate in the sexual activities. Additionally, the defence submits that E.N.’s age is not an aggravating factor and in fact she was “on the cusp of turning 16”.

[21] These submissions carry no weight. The complainant’s ‘voluntary’ involvement was, I find, as a result of the abuse of the defendant’s position of trust. The complainant’s ‘consent’ is vitiated by her age, hence the offence. These submissions while accurate in that these factors are not aggravating factors for consideration of the appropriate sentence, they are nonetheless an afront to the current understanding about the impact of sexual abuse upon children and have no place in the current criminal justice system.

[22] The defence submits that there is no breach of trust; however, acknowledges that there is a breach of trust continuum and that if this court finds an element of breach of trust that little weight should be accorded thereto.

[23] The defence does not take issue with the ancillary orders sought.

[24] Finally, the defence submits that Friesen, supra, did not change anything, but rather was simply a reminder to courts, as such cases decided prior to it are still beneficial in determining the appropriate sentence.

Analysis

1. Mitigating and Aggravating Facts

[25] I find the following to be mitigating facts on sentence:

(1) The plea of guilt.

(2) The expression of remorse and shame, both to the PSR author and to this court; however, this is somewhat lessened by the comments of the defendant’s girlfriend who expressed that he was acting only in response to E.N.’s advances. I find that this information could only have come from the defendant himself, as he relayed the details to her from his perspective. It is important to reiterate the agreed upon fact that E.N. was but 12 years of age when Mr. B.M. initiated grooming behaviours and actions.

(3) Mr. B.M.’s otherwise prosocial and stable lifestyle.

(4) Mr. B.M.’s positive employment history.

[26] I find the following to be aggravating facts on sentence:

(1) As noted above, I find that Mr. B.M. was engaging in grooming behaviour, both by texting and expressing sexual advances beginning when E.N. was just 12 years of age.

(2) I find that Mr. B.M. was in a position/relationship of trust, being an older, long-time employee of the family business, and who was given access to E.N. through his employment. Suffice it to say that the parents / business owners would only have allowed their 12 years old daughter to work in the family business if they entrusted the other employees to engage with her in an appropriate manner. She would not have been able to work, at that age, in a non-family business. All of the sexual activities took place either at the business or while engaged in business activities.

(3) Mr. B.M. knew his actions were wrong and encouraged or directed E.N. to keep quiet.

(4) There were four separate interactions, escalating from oral sex to vaginal intercourse, all of which took place over a 12-month period. From start to finish, from grooming to intercourse, the interactions were protracted.

(5) Mr. B.M. was not wearing a condom during the sexual intercourse, thus putting E.N. at risk for STI’s or pregnancy.

2. Sentencing Principles

[27] Section 718 of the Criminal Code, provides that the fundamental purpose of sentencing is "to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society."

[28] This fundamental purpose is achieved by imposing sanctions on offenders that have one or more of the following objectives:

• denouncing unlawful conduct;
• deterrence of the offender and other persons from committing offences;
• separation of offenders from society, where necessary;
• assisting in the rehabilitation of offenders;
• to provide for reparations of harm done to victims, or the community; and
• to promote a sense of responsibility in offenders and acknowledgment of harm done to victims and the community.

[29] Section 718.1 provides that "a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." Section 718.2 further provides that a sentence should be increased, or reduced, to account for any relevant aggravating or mitigating circumstances. In section 718.2(a) a number of deemed aggravating circumstances are enumerated. Section 718.2 goes on to provide the following guidelines for arriving at a fit and proper sentence:

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

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

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

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[30] The purpose, objectives, and principles of sentencing set out in s.718 and following, of the Code, as interpreted by the courts, provide the framework for the imposition of a fit sentence on the offender.

[31] A principled approach to sentencing requires an analysis without prejudice or sympathy.

[32] In R. v. Burghardt, 2020 ONCJ 517, at para 34, Justice West wrote:

Sentencing is highly individualized (see R. v. M. (C.A.), [1996] 1 S.C.R. 500, 1996 SCC 230, at paragraph 92) and must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is to be increased or reduced to account for any aggravating or mitigating circumstances. It should strive to be similar in relation to other sentences imposed on similar offenders in similar circumstances.

[33] The purpose of sentencing is to enhance the protection of society. Sentences should reflect the gravity of the offence and the degree of responsibility of the offender. These factors can be characterized as the moral culpability of the offender’s conduct.

[34] In R. v. Vader, 2019 ABCA 488, para. 16, the court wrote:

In assessing moral blameworthiness, a sentencing judge must consider all of the circumstances that bear on an offender's moral culpability. This includes not only the nature of the unlawful act, but also the degree of planning and deliberation involved in the unlawful act and any other factor that is relevant to the offender's moral blameworthiness, such as the personal characteristics of the offender that may aggravate or mitigate the offender's moral culpability.

[35] In R. v. T., 2005 MBCA 15, the court wrote:

24 Denunciation of unlawful conduct is a discrete principle of sentencing. It is one of the objectives of sentencing set out in s. 718 of the Criminal Code. Denunciation is "the communication of society's condemnation of the offender's conduct" (Lamer C.J. in R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5 at para. 102). It is "a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values" (Lamer C.J. in R. v. M. (C.A.), [1996] 1 S.C.R. 500, 1996 SCC 230 at para. 81). Denunciation is typically reserved for crimes that are particularly offensive or prevalent. When applicable, it usually prevails over the principle of rehabilitation.

[36] The principle of deterrence is succinctly summarized in R. v. Bourgeois, 2022 NBPC 2 as follows:

33 Deterrence is subdivided into specific and general elements. Specific deterrence is designed to convince the offender before the Court not to re-offend. The circumstances of the offender and the prospects for rehabilitation must be considered. A court must look at the individual, his record and attitude, his motivation and his reformation and rehabilitation.

34 General deterrence is aimed at persuading others who may be inclined to commit the same offence from so doing. If this is the aim, the sentencing court must consider the gravity of the offence, the incidence of the crime in the community, the harm caused by it either to the individual or to the community and the public attitude toward it.

[37] The principle of rehabilitation is succinctly summarized in Bourgeois, supra, as follows:

36 The maintenance of a just, peaceful and safe society, as is mandated by section 718, can often best be achieved by the rehabilitation of offenders. As the Supreme Court of Canada has held, "Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world" (see R. v. Lacasse, 2015 SCC 64 at para. 4).

[38] In R. v. Rawn, 2012 ONCA 487, paras. 17-18 and 30, the Court wrote:

17 The principle of parity of sentences is set out in s. 718.2(b) of the Code:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

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

18 The parity principle serves to preserve fairness by avoiding disparate sentences where similar facts relating to the offence and the offender would suggest like sentences. See: Clayton Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008), at para. 2.21.

30 In R. v. Issa (1992), 57 O.A.C. 253, this court expressed the role of the parity principle as follows, at para. 9:

So long as sentencing remains an individual process there maybe sentences meted out to offenders for participation in the same offence which are justifiably disparate. [We] think that Clayton Ruby's statement in Sentencing is correct, that the rule against unreasonable disparity in sentencing "does not require equal sentences, but only understandable sentences when examined together." [Citations omitted.]

[39] In R. v. Batisse, 2009 ONCA 114, pp. 32, the principle of restraint was reviewed:

32 The principle of restraint operates in three ways in the present case. First, it is an important consideration because the appellant was a first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 30 O.R. (3d) 538, 1996 ONCA 1381, at p. 545.

33 Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 207 O.A.C. 226, 2006 ONCA 2610, at para. 5:

[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.

34 In serious cases and cases involving violence, rehabilitation alone is not the determinative factor — general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, 2005 ONCA 5668, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.

35 Third, Parliament has codified the principle of restraint to limit the use of incarceration as a sentencing alternative, particularly for Aboriginal offenders. Subsection 718.2 (d) of the Criminal Code provides that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances". Subsection 718.2 (e) provides:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

3. Criminal Code and Case Law

[40] Section 271 of the Criminal Code reads as follows:

271. Sexual assault

Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

[41] The ability of E.N. to consent or voluntarily engage in the sexual activities was vitiated by virtue of her age and the provisions of the Criminal Code.

Sexual Assault of a Child

[42] I will not review each of the cases referred to by the parties (although considered), rather I will focus on Friesen, supra, which encapsulates most, if not all, of the salient points referred to by each counsel.

[43] In Friesen, supra, the Supreme Court of Canada’s decision began with a statement about child sexual abuse:

[5] Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Court 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.

[44] The SCC decision underscores the need for sentencing jurists to begin with the harm caused:

[50] 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. Getting the wrongfulness and harmfulness is important.

[51] … Sexual violence against children is thus wrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity.

[56] This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm.

[63] The ripple effects of sexual violence against children can make the child’s parents, caregivers, and family members secondary victims who also suffer profound harm as a result of the offence.

[80] We wish to focus courts’ attention on the following two categories of harm; harm that manifests itself during childhood, and long-term harm that only becomes evident during adulthood.

[45] The SCC decision also speaks to the moral culpability of offenders who commit sexual violence against children:

[88] 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. In assessing the degree of responsibility of the offender, courts must take into account the harm the offender intended or was reckless or wilfully blind to.

[89] All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender – the offender is treating the victim as an object and disregarding the victim’s human dignity.

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

[46] In R. v. E.C., 2019 ONCA 688, the court noted that:

14 Nor does the parties' relative proximity in age detract from the complainant's vulnerability, or from the respondent's blameworthiness in taking advantage of that vulnerability. While a greater discrepancy in age can be an aggravating factor, the opposite is not true. It is not a mitigating factor that the respondent was only six years and two months older than the complainant. The gravamen of the offence of sexual interference was described by Feldman J.A. in R. v. B. (A.), 2015 ONCA 803, 333 C.C.C. (3d) 382 (Ont. C.A.), at para. 45, as follows:

[T]he protection for children is not simply from sexual exploitation but from any sexual contact or the invitation to sexual contact with adults. Parliament viewed the protection to be necessary because of the inherent power imbalance that undermines consent, and because of the physical and psychological consequences of a sexual encounter between a child and an adult stemming from that imbalance.

Position of Trust

[47] In R. v. Lemay, 2020 ABCA 365, the court addressed the aggravating factor of a ‘position of trust’, writing:

26 The trial judge considered the facts individually to assess whether a specific fact supported finding a position of trust. He found the changing of diapers was too remote in time to support finding a trust relation; the length of time of acquaintance was not sufficient; calling him "Uncle" suggested a quasi-family relation but was not a sufficient basis for finding a trust position; and Mr. Lemay was not in a position of authority.

27 "[I]t is an error of law to subject individual pieces of evidence to the standard of proof beyond a reasonable doubt; the evidence must be looked at as a whole": R. v. H. (J.M.), [2011] 3 S.C.R. 197, 2011 SCC 45 at para 31; see also R. v. Morin, [1988] 2 S.C.R. 345, 1988 SCC 8, R. v. Ménard, [1998] 2 S.C.R. 109, 1998 SCC 790.

28 We also agree with the Crown that, to the extent the sentencing judge found a position of authority to be prerequisite to finding a trust relationship, he erred. Authority may be a factor contributing to a trust relationship, but it is not essential. Trust and authority may exist independently: R. v. Aird, 2013 ONCA 447 at para 34; R. v. S. (P.), [1993] O.J. No. 704, cited with approval in R. c. Audet, [1996] 2 S.C.R. 171, 1996 SCC 198 at para 33.

29 In Audet, the Supreme Court of Canada interpreted the meaning of "position of trust". The discussion was within the context of section 153 of the Criminal Code, but the definition applies when considering a position of trust in relation to the victim as an aggravating circumstance: Criminal Code, s. 718.2 (a)(iii); A. (A.G.) at para 7; R. v. R. (R.A.), 2000 SCC 8 at para 32. In determining whether a relationship between a young person and an accused is one of trust, courts "must take into account the purpose and objective pursued by Parliament of protecting the interests of young persons who, due to the nature of their relationships with certain persons, are in a position of vulnerability and weakness in relation to those persons": Audet at para 36 [emphasis in original.]

30 An exhaustive list of the factors to be considered by the trier of fact would be inappropriate as determining a position of trust will be based on "all the factual circumstances relevant to the characterization of the relationship between a young person and an accused": Audet at para 38. In Aird, the Ontario Court of Appeal reiterated that the legal label of "trust" does not attach categorically to specified relationships, but must be found based on the circumstances of the case: at para 27. At paras 28-29, it identified several considerations, no one of which is determinative, relevant to assessing whether a relationship of trust exists: the age difference between the accused and the young person; the evolution of their relationship; the status of the accused in relation to the young person; the degree of control, influence or persuasiveness exercised by the accused over the young person; and the expectations of the parties affected, including the accused, the young person and the young person's parents. In Audet at para 38, the Supreme Court underscored some of these potential factors and added "the status of the accused in relation to the young person".

31 More recently, the Supreme Court of Canada in Friesen at para 125 explained that trust relationships arise in varied circumstances and that "it makes sense to refer to a 'spectrum' of positions of trust (see R. v. B. (R.), 2017 ONCA 74 at para 21). An offender may simultaneously occupy multiple positions on the spectrum and a trust relationship can progress along the spectrum over time (see R. v. Vigon, 2016 ABCA 75 at para 17)."

32 An adult is in a relationship of trust with a child when the child would trust the adult, or would view the adult as an authority figure, or where the adult was given access to the child because of some existing relationship. Having the trust of the child's parent or parents is relevant as it enables access: R. v. Thompson, 2014 SKQB 313; R. v. Bauer, 2013 ONCA 691; R. v. Guitard, 2002 NBCA 99. "A person who is regarded by the parent or guardian of R. v. Lemay, 2020 ABCA 365 ... the child, and/or by the child, to be a responsible person, relied upon to do the right thing vis à vis the child, is generally in a position of trust": EJB at para 13.

33 A trust, authority or dependency relationship is not based on fixed or stereotypic categories: R. v. Innes, 2008 ABCA 129 at para 17; R. v. Anderson, 2009 PECA 4 at para 71. "The law recognizes a large category of relationships which have elements of trust in them": R. v. H. (S.M.), 2009 ABCA 315 at para 13. Trust relationships can include situations where a person inserts himself as a friend or advisor, (Innes, Anderson), insinuates himself into the daily life of young persons (R. v. P. (H.F.), 1998 ABCA 104 at para 7) or acts as a trusted friend (R. v. Robinson, 1994 ABCA 77 at para 2).

34 The following examples illustrate some of the varied circumstances in which trust relationships have been found:

a. where the offender was "an adult male resident of the house [visited by the victim], known by her no doubt to be some sort of relative": R. v. S. (W.B.) (1992), 73 C.C.C. (3d) 530, 1992 ABCA 2761 at para 55;

b. where the offender was the victim's mother's boyfriend's brother, and the victim spent considerable time at the offender's family's residence: R. v. I. (K.), 2008 ABPC 243 at para 9;

c. where the offender was a boarder in the victim's family home, and babysat on occasion (although babysitting was not determinative of the trust relationship): R. v. Lapatak (1995), 169 A.R. 385, 1995 ABCA 322 at paras 2, 9;

d. where the offender was babysitting the victims: R. v. Van Den Boogaard, 2006 ABCA 183 at para. 2;

e. where the offender was the victim's friend's father, hosting a sleepover: R. v. Bachewich, 2007 ABCA 199 at paras 2, 3, 6; and

f. where the offender rented a room in the family home and the victim "considered him a big brother": R. v. Kemper, 2004 ABCA 348 at para 2.

Conclusion

[48] I find Mr. B.M.’s moral culpability to be very high.

[49] I give considerable weight to the guilty plea which, as is well known, saves not only court time (which is currently is backlogged due to the pandemic) but more importantly saves the complainant from having to attend court and relive the traumatic experiences that she endured. This is especially meaningful when herein the complainant has made great progress through the therapeutic process.

[50] This court must take careful consideration of the upper limit expressed by Crown and accept that much has gone into the crafting of that position. The position of the defence is not only inappropriate, it is grossly disproportionate to the gravity of the offence.

[51] Post sentencing hearing, this court sought written submissions from the parties regarding the question of why the court should not exceed the Crown’s position, in light of Friesen, supra and R. v. Nahanee, 2022 SCC 37.

[52] The defence reiterated much of what was submitted in the original sentencing hearing, highlighting the negotiations between the parties in advance of the guilty plea. Of course, it is trite to say that an accused party, in compliance with s. 606 of the Criminal Code, understands that the ultimate decision as to sentence is for the presiding jurist and not the Crown. Additionally, as per Nahanee, supra, Anthony-Cook does not apply to contested sentencing hearings following a guilty plea.

[53] The Crown, as well, reiterated much of what was submitted in the original sentencing hearing, again, highlighting the negotiations between the parties in advance of the guilty plea. There was nothing in the supplementary materials that was either new or unknown to this court at the time of the sentencing hearing.

[54] Neither party, at any point in the proceedings, identified any unusual circumstances in this case, or unique factors that might justify a sentence out of the appropriate range. Simply put, the parties expressed that their negotiations should hold the day.

[55] Contained in the defence post sentencing hearing written submissions, counsel, at the literal 11th hour, offered to then join the Crown in their position of 2 years less a day. Even if that position were a joint submission, it would have been inappropriate for the reasons noted above.

[56] In all of the circumstances, and in consideration of the caselaw, a sentence in the range of 4-6 years would have been an appropriate consideration but for the guilty plea.

[57] With heavy reliance upon the principle of restraint, the appropriate sentence is 1080 days, or 36 months, a s. 109 order for 10 years, a DNA order, a SOIRA order for 20 years and a s. 743.21 order.

Released: January 19, 2023. Signed: Justice Angela L. McLeod