Supreme Court of Canada **Appeal Heard and Judgment Rendered:** October 16, 2019

Reasons for Judgment: April 2, 2020 Docket: 38300 --- ## Parties Between: Her Majesty The Queen — Appellant and Justyn Kyle Napoleon Friesen — Respondent — and — Attorney General of Ontario, Attorney General of British Columbia, Attorney General of Alberta, Criminal Trial Lawyers' Association and

Legal Aid Society of Alberta — Interveners --- Indexed as: R. v. Friesen 2020 SCC 9 File No.: 38300. 2019: October 16; 2020: April 2. Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. on appeal from the court of appeal for manitoba --- ## Headnote Criminal law — Sentencing — Considerations — Sentencing ranges and starting points — Sexual offences against children — Sentencing judge imposing six‑year global sentence following accused's guilty plea to offences of sexual interference with young child and attempted extortion of child's mother — Court of Appeal reducing sentence to four years and six months — Whether sentencing ranges for sexual offences against children are still consistent with Parliamentary and judicial recognition of severity of such crimes — Whether Court of Appeal erred by interfering with sentence imposed by sentencing judge. F encountered the victim's mother on an online dating website. One night, the mother brought F to her residence, where she and F engaged in consensual sexual intercourse in the mother's bedroom. F then told the mother to bring the victim, her four‑year‑old daughter, into the bedroom. F and the mother subjected the victim to sexual violence. Her screams and cries awoke the mother's friend who removed the victim from the room. F then threatened the mother that unless she brought the victim back, he would tell the mother's friend that the mother had previously sexually abused her one‑year‑old son. F pled guilty to sexual interference with the victim and attempted extortion of the mother. The sentencing judge imposed a six‑year sentence for sexual interference and a concurrent six‑year sentence for attempted extortion. He determined that the four‑to‑five year sentencing starting point identified previously by the Manitoba Court of Appeal for major sexual assault committed on a young person within a trust relationship was appropriate even though F did not stand in a position of trust to the victim. The Court of Appeal found that the sentencing judge had erred in principle by applying the starting point, which presumed the existence of a trust relationship, when the sentencing judge had found that there was none. The Court of Appeal conducted a fresh analysis and reduced the sentence to four and one‑half years' incarceration for sexual interference and to eighteen months' incarceration to be served concurrently for attempted extortion. The Crown appeals to the Court from the Court of Appeal's interference with the sentence for the sexual interference offence. Held: The appeal should be allowed and the sentence imposed by the sentencing judge for sexual interference restored. Appellate courts must generally defer to sentencing judges' decisions and 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. Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. If appellate intervention is justified, the court will apply the principles of sentencing afresh to the facts, without deference to the existing sentence, even if that sentence falls within the applicable range. Where an appellate court has found that an error in principle had an impact on the sentence, it is not a further precondition to appellate intervention that the existing sentence is demonstrably unfit or falls outside the range of sentences imposed in the past. All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similar sentences. Parity is an expression of proportionality and gives meaning to proportionality in practice. A proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases. Sentencing precedents reflect the range of factual situations in the world, embody the collective experience and wisdom of the judiciary, and are the practical expression of both parity and proportionality. Appellate courts have a dual role in sentence appeals. They correct errors in sentencing to ensure both that the principles of sentencing are correctly applied and that sentences are not demonstrably unfit, and they have a role in developing the law and providing guidance. Appellate courts will distill many precedents into a single statement, a range of sentences or perhaps a starting point, that sentencing judges can more readily use. As a general rule, appellate courts should give sentencing judges the tools to depart from past precedents and craft fit sentences when a body of precedent no longer responds to society's current understanding and awareness of the gravity of a particular offence and blameworthiness of particular offenders or to the legislative initiatives of Parliament. Canadian appellate courts often provide guidance in the form of ranges of sentences, which are summaries of the minimum and maximum sentences imposed in the past and serve as guides for the application of all relevant principles and objectives. Some courts use starting points as an alternative. However, sentencing ranges and starting points are guidelines, not hard and fast rules. Appellate courts cannot treat the departure from or failure to refer to either as an error in principle. Nor can they intervene simply because the sentence is different from the sentence that would have been reached had the range or starting point been applied. Appellate courts cannot interpret or apply the standard of review to enforce ranges or starting points; to do so would be to usurp the role of Parliament in creating categories of offences. 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 impose sentences that are commensurate with the gravity of sexual offences against children and that reflect the normative character of the offender's actions and the consequential harm to children and their families, caregivers, and communities. Specifically, 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. Sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case. 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. Parliament has determined that sentences for sexual offences against children should increase to match its view of the gravity of such offences. It has increased maximum sentences for these offences and prioritized denunciation and deterrence in sentencing. Parliament's decision to repeatedly increase maximum sentences for sexual offences against children should be understood as shifting the distribution of proportionate sentences for these offences. To respect Parliament's decision, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. Parliament's decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 of the Criminal Code confirms the need for courts to impose more severe sanctions for sexual offences against children. A national starting point or sentencing range for sexual offences against children should not be created by the Court. The appropriate length and the setting of sentencing ranges or starting points are best left to provincial appellate courts. Nonetheless, to ensure that sentences for sexual offences against children correspond to Parliament's legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes, guidance on three specific points is required. First, upward departure from prior precedents and sentencing ranges should occur for sexual offences against children because Parliament increased the maximum sentences for these offences and because society's understanding of the gravity and harmfulness of these offences has deepened. Courts are justified in departing from dated precedents that do not reflect society's current awareness of the impact of sexual violence on children in imposing a fit sentence. There is concern about sentencing ranges based on precedents that appear to restrict sentencing judges' discretion by imposing caps on sentences that can only be exceeded in exceptional circumstances. Sexual offences against children can cover a wide variety of circumstances and appellate guidance should make clear that sentencing judges can respond to this reality by imposing sentences that reflect increases in the gravity of the offence and the degree of responsibility of the offender. Imposing proportionate sentences will frequently require substantial sentences. Parliament's statutory amendments have strengthened that message. 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. A maximum sentence should be imposed whenever the circumstances warrant it. Second, sexual offences against children should generally be punished more severely than sexual offences against adults, as Parliament has determined by clear indication in the Criminal Code. Accordingly, provincial appellate courts are directed to revise and rationalize sentencing ranges and starting points where they have treated sexual violence against children and sexual violence against adults similarly. Third, treating the offence of sexual interference with a child as less serious than that of sexual assault of a person under the age of 16 is an error of law. Parliament has established the same maximum sentences for both offences. The elements of the offences are also similar, and a conviction for sexual assault of a child and for sexual interference with a child can frequently be supported on the same factual foundation. In order to promote the uniform application of the law of sentencing, the following non‑exhaustive significant factors to determine a fit sentence for sexual offences against children must be considered. First, the higher the offender's risk to reoffend, the more the court needs to emphasize the sentencing objective of separating the offender from society to protect vulnerable children from wrongful exploitation and harm. Second, 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. Third, 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 and the offender's increased degree of responsibility. Fourth, the 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. Fifth, defining a sentencing range based on the specific type of sexual activity at issue poses several dangers. In particular, courts must be careful to avoid the following errors: attributing intrinsic significance to the occurrence or non‑occurrence of sexual acts based on traditional notions of sexual propriety; assuming that there is correlation between the type of physical act and the harm to the child; failing to recognize the wrongfulness of sexual violence in cases where the degree of physical interference is less pronounced; and understanding the degree of physical interference factor in terms of a type of hierarchy of physical acts. Sixth, a child's participation is not a mitigating factor, nor should it be a legally relevant consideration at sentencing. In particular, a child's non‑resistance should not be equated to "de facto consent"; a victim's participation should not distract the court from the harm that the victim suffers as a result of sexual violence; a breach of trust or grooming that led to the victim's participation is an aggravating factor; and, adults always have a responsibility to refrain from engaging in sexual violence towards children. In the present case, the Court of Appeal based its intervention on an error in principle that the sentencing judge did not make. It is not an accurate characterization of the sentencing judge's reasons that his choice of the four‑to‑five‑year starting point demonstrated he relied on the aggravating factor of abuse of a position of trust that he had found did not exist. Rather, he determined that it was appropriate to employ a four‑to‑five‑year starting point because the aggravating circumstances of the case warranted it. The sentencing judge sought to exercise his discretion in a way that gave effect to the principles of sentencing, in light of the circumstances of the case, and his decision should be accorded deference. He was entitled to conclude that the aggravating factors were so serious as to place the case on par with the starting point the Manitoba Court of Appeal had set for major sexual assault committed on a young person within a trust relationship. Since the Court of Appeal did not identify any other error and concluded the sentencing judge appropriately balanced the aggravating and mitigating factors, it should not have intervened. This case exemplifies the danger of treating starting points as binding laws. Rather than focusing on whether the sentencing judge chose the right starting point, the Court of Appeal should have focused on whether the sentence was fit and, most fundamentally, whether the sentencing judge properly applied the principles of sentencing. The sentence was also not demonstrably unfit. Far from being so excessive, the sentence was on the lenient end of the spectrum of fit sentences. The sentencing judge took a careful approach to many of the significant factors previously discussed: he properly recognized the immediate and long‑term harm to the victim that F's conduct caused; appreciated the incredibly aggravating nature of the victim's young age; and properly emphasized separation of the offender from society. The fact that the sentencing judge found that F did not stand in a position of trust does not make the sentence unfit. F's moral blameworthiness is heightened because he knowingly decided to exploit the mother's relationship of trust and thus was complicit in the mother's breach of trust. Even if the mother had not stood in a position of trust, the fact that F coordinated the sexual violence against the victim with the mother would be an aggravating factor. The sentencing judge properly weighed the mitigating factors against the aggravating factors and the need to prioritize denunciation and deterrence as well as separation of F from society because of the high risk he posed to children. This all supported a reasoned and principled basis to impose a substantial custodial term. --- ## Cases Cited Applied: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163; approved: R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81; R. v. S. (J.), 2018 ONCA 675, 142 O.R. (3d) 81; R. v. D. (D.) (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788; referred to: R. v. Sidwell, 2015 MBCA 56, 319 Man.R. (2d) 144; R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227; R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261; R. v. McKnight (1999), 1999 3717 (ON CA), 135 C.C.C. (3d) 41; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v. Wilmott, 1966 222 (ON CA), [1966] 2 O.R. 654; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290; R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496; R. v. Parranto, 2019 ABCA 457, 98 Alta. L.R. (6th) 114; Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817; R. v. L. (J.‑J.) (1998), 1998 12722 (QC CA), 126 C.C.C. (3d) 235; R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320; R. v. M. (D.), 2012 ONCA 520, 111 O.R. (3d) 721; R. v. L. (W.K.), 1991 54 (SCC), [1991] 1 S.C.R. 1091; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906; R. v. Rafiq, 2015 ONCA 768, 342 O.A.C. 193; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; R. v. F. (D.G.), 2010 ONCA 27, 98 O.R. (3d) 241; R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021; R. v. Hajar, 2016 ABCA 222, 39 Alta. L.R. (6th) 209; R. v. McCraw, 1991 29 (SCC), [1991] 3 S.C.R. 72; R. v. L. (D.O.), 1993 46 (SCC), [1993] 4 S.C.R. 419; R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584; R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3; R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132; R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379; R. v. Hood, 2018 NSCA 18, 45 C.R. (7th) 269; R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688; R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3; R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551; R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330; Non‑Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551; R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309; R. v. Hess, 1990 89 (SCC), [1990] 2 S.C.R. 906; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440; R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3; R. v. Levogiannis, 1993 47 (SCC), [1993] 4 S.C.R. 475; R. v. Osolin, 1993 54 (SCC), [1993] 4 S.C.R. 595; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Malmo‑Levine, 2003 SCC 74, [2003] 3 S.C.R. 571; R. v. Audet, 1996 198 (SCC), [1996] 2 S.C.R. 171; R. v. Cheddesingh, 2004 SCC 16, [2004] 1 S.C.R. 433; R. v. Davis, 1999 638 (SCC), [1999] 3 S.C.R. 759. --- ## Statutes and Regulations Cited Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985, c. 19 (3rd Supp.), s. 1. Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32. Canadian Victims Bill of Rights, S.C. 2015, c. 13, s. 2. *Criminal Code*, R.S.C. 1985, c. C‑46, ss. 2 "victim", 150.1(2.1), (2.2), (2.3), 151, 152, 153, 155, 160(3), 161, 163.1(2), (3), (4), (4.1), 170, 171, 171.1, 172.1, 172.2, 173(2), 212(4) [rep. 2014, c. 25, s. 13], 271, 272, 279.011, 279.02(2), 279.03(2), 280(1), 281, 286.1(2), 286.2(2), 286.3(2), 346(1), 348.1, 718, 718.01, 718.1, 718.2(a)(ii.1), (a)(iii), (b), (c) and 722. Protection of Communities and Exploited Persons Act, S.C. 2014, c. 25, s. 13. Tackling Violent Crime Act, S.C. 2008, c. 6. Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, ss. 2 to 4. --- ## Treaties and Other International Instruments United Nations. General Assembly. Report of the independent expert for the United Nations study on violence against children, U.N. Doc. A/61/299, August 29, 2006. --- ## Authors Cited Bala, Nicholas. "Double Victims: Child Sexual Abuse and the Canadian Criminal Justice System", in Walter S. Tarnopolsky, Joyce Whitman and Monique Ouellette, eds., Discrimination in the law and the administration of justice, Montréal: Thémis, 1993, 232. Bauman, Carol-Ann. "The Sentencing of Sexual Offences against Children" (1998), 17 C.R. (5th) 352. Benedet, Janine. "Sentencing for Sexual Offences Against Children and Youth: Mandatory Minimums, Proportionality and Unintended Consequences" (2019), 44 Queen's L.J. 284. Boyle, Christine L. M. Sexual Assault. Toronto: Carswell, 1984. British Columbia. Representative for Children and Youth. Too Many Victims: Sexualized Violence in the Lives of Children and Youth in Care. Victoria, 2016. Canada. Committee on Sexual Offences Against Children and Youths. Sexual Offences Against Children: Report of the Committee on Sexual Offences Against Children and Youths, vol. 1. Ottawa: Minister of Supply and Services Canada, 1984. Canada. Department of Justice. Research and Statistics Division, Just Facts: Sexual Violations against Children and Child Pornography, March 2019 (online: https://www.justice.gc.ca/eng/rp-pr/jr/jf-pf/2019/docs/mar02.pdf; archived version: https://www.scc-csc.ca/cso-dce/2020SCC-CSC9_1_eng.pdf). Canada. House of Commons. House of Commons Debates, vol. 1, 2nd Sess., 33rd Parl., November 4, 1986, at p. 1037. Canada. House of Commons. House of Commons Debates, vol. 140, No. 7, 1st Sess., 38th Parl., October 13, 2004, at p. 322. Canada. Senate. Standing Senate Committee on Human Rights, The Sexual Exploitation of Children in Canada: the Need for National Action, November 2011 (online: https://sencanada.ca/content/sen/Committee/411/ridr/rep/rep03nov11-e.pdf; archived version: https://www.scc-csc.ca/cso-dce/2020SCC-CSC9_2_eng.pdf). Canada. Special Committee on Pornography and Prostitution, Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution, vol. 1 and vol. 2. Ottawa: Minister of Supply and Services Canada, 1985. Canada. Statistics Canada. Canadian Centre for Justice Statistics. Police-reported sexual offences against children and youth in Canada, 2012, by Adam Cotter and Pascale Beaupré. Minister of Industry, 2014. Canada. Statistics Canada. Canadian Centre for Justice Statistics. Victimization of Aboriginal people in Canada, 2014, by Jillian Boyce. Minister of Industry, 2016. Canada. Statistics Canada. Canadian Centre for Justice Statistics. Violent victimization of women with disabilities, 2014, by Adam Cotter. Minister of Industry, 2018. Craig, Elaine. Troubling Sex: Towards a Legal Theory of Sexual Integrity. Vancouver: UBC Press, 2012. Desrosiers, Julie, et Geneviève Beausoleil-Allard. L'agression sexuelle en droit canadien, 2e éd. Montréal: Yvon Blais, 2017. Grant, Isabel, and Janine Benedet. "Confronting the Sexual Assault of Teenage Girls: The Mistake of Age Defence in Canadian Sexual Assault Law" (2019), 97 Can. Bar Rev. 1. Grant, Isabel, and Janine Benedet. "The 'Statutory Rape' Myth: A Case Law Study of Sexual Assaults against Adolescent Girls" (2019), 31 C.J.W.L. 266. Koppel, Maria. "It's Not Just a Heterosexual Issue: A Discussion of LGBT Sexual Assault Victimization", in Frances P. Reddington and Betsy Wright Kreisel, eds., Sexual Assault: The Victims, the Perpetrators, and the Criminal Justice System, 3rd ed. Durham, N.C.: Carolina Academic Press, 2017, 257. Lessard, Michaël, et Suzanne Zaccour. "Quel genre de droit? Autopsie du sexisme dans la langue juridique" (2017), 47 R.D.U.S. 227. Levesque, Roger J. R. Sexual Abuse of Children: A Human Rights Perspective. Bloomington: Indiana University Press, 1999. L'Heureux-Dubé, Claire. "Foreword: Still Punished for Being Female", in Elizabeth A. Sheehy, ed., Sexual Assault in Canada: Law, Legal Practice and Women's Activism. Ottawa: University of Ottawa Press, 2012, 1. Lindberg, Tracey, Campeau, Priscilla and Maria Campbell. "Indigenous Women and Sexual Assault in Canada", in Elizabeth A. Sheehy, ed., Sexual Assault in Canada: Law, Legal Practice and Women's Activism. Ottawa: University of Ottawa Press, 2012, 87. Manson, Allan. "McDonnell and the Methodology of Sentencing" (1997), 6 C.R. (5th) 277. Manson, Allan. The Law of Sentencing. Toronto: Irwin Law, 2001. Marshall, Patricia. "Sexual Assault, The Charter and Sentencing Reform" (1988), 63 C.R. (3d) 216. McGillivray, Anne. "Abused Children in the Courts: Adjusting the Scales after Bill C‑15" (1990), 19 Man. L.J. 549. Moreau, Paul. "In Defence of Starting Point Sentencing" (2016), 63 Crim. L.Q. 345. Nadin-Davis, R. Paul. "Making a Silk Purse? Sentencing: The 'New' Sexual Offences" (1983), 32 C.R. (3d) 28. Ontario. The Cornwall Public Inquiry. Report of the Cornwall Inquiry, Phase 1: Facts and Findings, vol. 1. Cornwall, 2009. Parent, Hugues, et Julie Desrosiers. Traité de droit criminel, t. III, La peine, 2e éd. Montréal: Thémis, 2016. Perrin, Benjamin. Victim Law: The Law of Victims of Crime in Canada. Toronto: Thomson Reuters, 2017. Renaud, Gilles. The Sentencing Code of Canada: Principles and Objectives. Markham, Ont.: LexisNexis, 2009. Ruby, Clayton C., et al. Sentencing, 9th ed. Toronto: LexisNexis, 2017. Rudin, Jonathan. "Eyes Wide Shut: The Alberta Court of Appeal's Decision in R. v. Arcand and Aboriginal Offenders" (2011), 48 Alta. L. Rev. 987. Silver, Lisa. Sentencing to the Starting Point: The Alberta Debate, May 23, 2019 (online: https://ablawg.ca/2019/05/23/sentencing-to-the-starting-point-the-alberta-debate/; archived version: https://www.scc-csc.ca/cso-dce/2020SCC-CSC9_3_eng.pdf). Todd, Debra. "Sentencing of Adult Offenders in Cases Involving Sexual Abuse of Children: Too Little, Too Late? A View From the Pennsylvania Bench" (2004), 109 Penn. St. L. Rev. 487. Wright, Margaret M. Judicial Decision Making in Child Sexual Abuse Cases. Vancouver: UBC Press, 2007. --- APPEAL from a judgment of the Manitoba Court of Appeal (Monnin, Beard and leMaistre JJ.A.), 2018 MBCA 69, [2018] M.J. No. 164 (QL), 2018 CarswellMan 258 (WL Can.), varying a sentence imposed for sexual interference and attempted extortion. Appeal allowed. Rekha Malaviya and Renée Lagimodière, for the appellant. Gerri Wiebe and Ryan McElhoes, for the respondent. Lisa Joyal, for the intervener the Attorney General of Ontario. John R. W. Caldwell, for the intervener the Attorney General of British Columbia. Joanne B. Dartana, for the intervener the Attorney General of Alberta. Daniel J. Song, for the intervener the Criminal Trial Lawyers' Association. Dane Bullerwell, for the intervener the Legal Aid Society of Alberta. --- ## Table of Contents | Section | Paragraph | |---------|-----------| | I. Overview | 1 | | II. Factual Background | 6 | | A. The Offences | 6 | | B. Information About Friesen | 13 | | III. Proceedings Below | 16 | | A. Provincial Court of Manitoba (Judge Stewart), Reasons for Sentence, March 9, 2017 | 16 | | B. Manitoba Court of Appeal (Monnin, Beard and leMaistre JJ.A.), 2018 MBCA 69 | 20 | | IV. Issues | 23 | | V. Analysis | 25 | | A. Standard of Review | 25 | | B. Principles Governing Appellate Review and Parity | 30 | | (1) Proportionality and Parity | 30 | | (2) Role of Appellate Courts | 34 | | (3) Ranges of Sentence and Starting Points | 36 | | (4) Concerns About Starting Points | 40 | | C. Sentencing Principles for Sexual Offences Against Children | 42 | | (1) Contemporary Understanding of Sexual Violence Against Children | 46 | | (2) Sentencing Must Reflect the Contemporary Understanding of Sexual Violence Against Children | 74 | | (3) Parliament Has Mandated That Sentences for Sexual Offences Against Children Must Increase | 95 | | (4) Specific Guidance on Sentence Increases | 106 | | (5) Significant Factors to Determine a Fit Sentence | 121 | | (6) Consecutive Sentences and Totality | 155 | | D. Application | 159 | | (1) No Error in Principle That Affected the Sentence | 159 | | (2) Sentence Not Demonstrably Unfit | 166 | | (3) Additional Aggravating Factors | 176 | | (4) Lack of Clarity Regarding Concurrent vs. Consecutive Sentences | 181 | | VI. Disposition | 183 |

| Appendix | | --- ## Reasons for Judgment The reasons for judgment of the Court were delivered by The Chief Justice and Rowe J. — --- ## I. Overview [1] Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence. Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year. This case is about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children.[^1] [2] The accused pled guilty to sexual interference with a young child and attempted extortion of the child's mother. The sentencing judge determined that a six-year global sentence was appropriate. The Court of Appeal reduced the sentence to four and one-half years. We would allow the Crown's appeal and restore the six-year sentence. [3] We wish to convey three overarching points in these reasons. First, we affirm the standard of review for sentencing set out in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, and especially the guidance about how an appellate court should proceed when it identifies an error in principle. [4] Second, we clarify the limits that appellate deference imposes on both sentencing ranges and starting points, and outline particular concerns associated with starting point sentencing. [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. 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. --- ## II. Factual Background ### A. The Offences [6] Friesen encountered the mother on an online dating website on June 29, 2016. On July 17, 2016, at about 1:00 a.m., the mother picked Friesen up from the bar where he had spent the evening and brought him to her residence. The mother's four-year-old daughter ("child") and her one-year-old son were also at the residence. The mother's friend was babysitting them for the evening. [7] Friesen and the mother engaged in consensual sexual intercourse in the mother's bedroom. The mother audio-recorded what happened next on her cellphone and the transcript of the recording was admitted at the sentencing hearing. Friesen told the mother to bring the child into the bedroom so that they could force their mouths onto her vagina and so that he could force his penis into her vagina. The mother brought the sleeping child up into the bedroom, removed her diaper, and laid her naked on the bed. [8] The child began to cry and tried to flee the bedroom. Friesen and the mother prevented her from escaping. As the child was in distress and screaming, Friesen repeatedly directed the mother to force the child's head down so that he could force his penis into her mouth. [9] The child's screams and cries awoke the mother's friend. She entered the bedroom, observed the sexual violence, and told the child to "come here" (A.R., at p. 97). In response, Friesen said "bring her here" (p. 97). Instead, the mother's friend removed the child from the room. [10] With the child gone, Friesen told the mother to engage in sexual activities with him. The mother expressed regret about the violent assault on the child. In response, Friesen threatened to tell the mother's friend that the mother had sexually abused her one-year-old son. When the mother said she did not want this to happen, he told her to "relax" and masturbate herself in front of him (p. 99). [11] Friesen then threatened the mother, repeatedly telling her that unless she brought the child back, he would tell the mother's friend that the mother had sexually abused her one-year-old son. Friesen told the mother that he intended to "fuck" and "rape" the child while "she's crying" (pp. 100 and 102). In response, the mother repeatedly asked why Friesen needed to do "that stuff" (p. 100). When the mother raised concerns about getting one of her children back from Child and Family Services ("CFS"), Friesen indicated that he would get one of her children back for her if she returned the child to the bedroom. [12] Friesen fled the residence when the mother's friend confronted him about the sexual violence. --- ### B. Information About Friesen [13] Friesen pled guilty to sexual interference with the child (*Criminal Code*, R.S.C. 1985, c. C-46, s. 151) and attempted extortion of the mother (Criminal Code, s. 346(1)). At the time of sentencing, he was 29 years old and had no prior record. [14] Friesen's childhood was characterized by neglect and by physical and sexual violence. When he left CFS care, he became homeless and sold sex on the street to survive. He lacked a supportive social circle and experienced depression and anxiety. He told the author of the pre-sentence report that the trauma of sexual abuse that he experienced has affected him throughout his life. He said he wanted professional counselling to deal with his problems. At the sentencing hearing, he stated that he was sorry and had remorse (A.R., at p. 72). [15] The author of the pre-sentence report assessed Friesen as a high risk to re-offend. He scored in the 94th percentile of an actuarial measure of relative risk for sexual offence recidivism. The author concluded that Friesen's level of insight into his behaviour was "essentially nonexistent" (p. 94). He claimed to be blacked out during the offences and distanced himself from his conduct by saying it was not something he would do. He also stated that he enjoys being around children and wanted to be a role model for children. Despite reporting that he was under the influence of alcohol at the time of the offences, he also maintained that alcohol use was never a problem for him. As Friesen did not understand the risk factors that preceded the offences, there were no risk strategies in place to mitigate future risk. --- ## III. Proceedings Below ### A. Provincial Court of Manitoba (Judge Stewart), Reasons for Sentence, March 9, 2017 [16] In the Provincial Court of Manitoba, the Crown sought a sentence of seven years' imprisonment. Friesen suggested a sentence of a total of three years' imprisonment. [17] Judge Stewart imposed a six-year sentence for sexual interference and a concurrent six-year sentence for attempted extortion. He identified the governing sentencing objectives as denunciation and the protection of children. Specifically, he found that the court's duty to protect children from the threat of sexual violence was "paramount" (A.R., at p. 2). He identified the young age of the child and the involvement of the mother in the sexual violence as aggravating factors. He acknowledged that Friesen's youth, lack of a prior record, and difficult and traumatic upbringing were "important" mitigating factors (p. 2). He also accepted that Friesen did not stand in a position of trust in relation to the child. However, he found that Friesen was "in . . . denial" about his conduct and had "no insight" into his behaviour (pp. 2 and 5). Judge Stewart concluded that this lack of insight was "frightening for ongoing risk into the future" (p. 3). [18] Judge Stewart determined that the four-to-five-year starting point for major sexual assault committed on a young person within a trust relationship by means of violence, threats of violence, or grooming, which the Manitoba Court of Appeal had identified in R. v. Sidwell, 2015 MBCA 56, 319 Man.R. (2d) 144, was appropriate even though Friesen did not stand in a position of trust. For Judge Stewart, the absence of a position of trust did not "chang[e] the message" of Sidwell because of both the harm to the child and Friesen's moral blameworthiness. First, Judge Stewart found that Friesen's violent conduct produced an "instant effect" of harm to the child as evidenced by her screams and cries (A.R., at p. 4). In addition to this immediate harm, Judge Stewart found that Friesen's conduct caused "long lasting" psychological harm to the child (p. 3). He identified the child's extreme youth as "incredibly aggravating" because it increased her vulnerability to harm (p. 3). Second, Judge Stewart determined that Friesen's moral blameworthiness was high. He found that the nature of Friesen's conduct was "horrific" and that it was "unbelievable" that Friesen could commit sexual violence against the child in such a manner. Judge Stewart also treated Friesen's decision to accompany sexual violence with "a form of extortion" as "an aggravating factor" (p. 4). [19] Judge Stewart concluded that six years' incarceration was required to protect children from risk. He reasoned that Friesen's case was "one of the worst" that he had seen (p. 5). A three-year sentence would be insufficient to communicate the wrongfulness of Friesen's conduct to both Friesen himself and the larger community. Judge Stewart determined that Friesen needed "significant help" and professional counselling that would only be accessible in a federal penitentiary to return to society without posing a risk to children (p. 5). Immediately prior to imposing sentence, Judge Stewart reiterated that the protection of children from the risk of sexual violence was the "major principle" that guided him in imposing sentence (p. 5). --- ### B. Manitoba Court of Appeal (Monnin, Beard and leMaistre JJ.A.), 2018 MBCA 69 [20] Writing for the Court of Appeal, leMaistre J.A. found that appellate intervention was justified because Judge Stewart had erred in principle. She reduced Friesen's sentence to four and one-half years' incarceration for the sexual interference conviction and to eighteen months' incarceration to be served concurrently for the attempted extortion conviction. Only the Court of Appeal's interference with the sexual interference sentence was challenged on appeal to this Court. [21] Regarding the sexual interference sentence, leMaistre J.A. accepted that Judge Stewart had appropriately weighed the aggravating and mitigating factors. However, she noted that the Sidwell four-to-five-year starting point presumed the existence of a trust relationship but that Judge Stewart had found that there was no trust relationship between Friesen and the child. Accordingly, she concluded that Judge Stewart "relied upon an aggravating factor that he had found did not exist" by employing the Sidwell starting point and that this error had a meaningful impact on his analysis (para. 16). Thus, no deference was owed and the Court of Appeal was "free to consider the matter afresh" (para. 17). [22] LeMaistre J.A. then conducted a fresh analysis to determine a fit sentence. She accepted that the starting point for sentencing should be higher than three years because of Friesen's use of violence and the child's young age. LeMaistre J.A. assessed the aggravating and mitigating factors without reference to Judge Stewart's findings. In the course of this assessment, she characterized Friesen's use of violence as "more than what is inherent in a sexual offence" and stated that Friesen's lack of insight "impacts on his risk when in the community" (para. 28). She also accepted that it was reasonably foreseeable that Friesen's decision to involve the mother in the sexual violence would likely cause added "serious psychological or emotional harm" to the child (para. 32). She characterized the circumstances of the offences as "serious" and Friesen's responsibility as "high" (para. 31). The sexual interference alone warranted a four-year sentence, and leMaistre J.A. increased this figure by six months to account for the offence of attempted extortion, for which she sentenced the accused to 18 months' incarceration to be served concurrently. In the concluding paragraph of her reasons, leMaistre J.A. stated that Judge Stewart's error in applying the wrong starting point for the sexual interference offence made the sentence he imposed demonstrably unfit (para. 42). --- ## IV. Issues [23] The Crown raised two issues: (1) Are sentencing ranges for sexual offences against children still consistent with Parliamentary and judicial recognition of the severity of these crimes? (2) Did the Manitoba Court of Appeal err by interfering with the six-year sentence the sentencing judge imposed for the sexual interference conviction? [24] The first issue requires a broad overview of how the principles of sentencing apply to sexual offences against children. The second requires an analysis of the standard of review, the starting point method, the principles governing consecutive sentences, and the principle of totality. --- ## V. Analysis ### A. Standard of Review [25] Appellate courts must generally defer to sentencing judges' decisions. The sentencing judge sees and hears all the evidence and the submissions in person (*Lacasse*, at para. 48; R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, at para. 46). The sentencing judge has regular front-line experience and usually has experience with the particular circumstances and needs of the community where the crime was committed (*Lacasse*, at para. 48; R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 91). Finally, to avoid delay and the misuse of judicial resources, an appellate court should only substitute its own decision for a sentencing judge's for good reason (*Lacasse*, at para. 48; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at para. 70). [26] As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44). Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle "[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably" (R. v. McKnight (1999), 1999 3717 (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49). Not every error in principle is material: an appellate court can only intervene if it is apparent from the trial judge's reasons that the error had an impact on the sentence (Lacasse, at para. 44). If an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrably unfit. [27] If a sentence is demonstrably unfit or if a sentencing judge made an error in principle that had an impact on the sentence, an appellate court must perform its own sentencing analysis to determine a fit sentence (Lacasse, at para. 43). It will apply the principles of sentencing afresh to the facts, without deference to the existing sentence, even if that sentence falls within the applicable range. Thus, where an appellate court has found that an error in principle had an impact on the sentence, that is a sufficient basis for it to intervene and determine a fit sentence. It is not a further precondition to appellate intervention that the existing sentence is demonstrably unfit or falls outside the range of sentences imposed in the past. [28] However, in sentencing afresh, the appellate court will defer to the sentencing judge's findings of fact or identification of aggravating and mitigating factors, to the extent that they are not affected by an error in principle. This deference limits the number, length, and cost of appeals; promotes the autonomy and integrity of sentencing proceedings; and recognizes the sentencing judge's expertise and advantageous position (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 15-18). [29] Often the sentence that the appellate court determines to be fit will be different from that imposed by the sentencing judge, and the appellate court will vary the sentence. If the sentence chosen by the appellate court is the same as that imposed by the sentencing judge, the appellate court may also affirm the sentence despite the error. --- ### B. Principles Governing Appellate Review and Parity #### (1) Proportionality and Parity [30] All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of proportionality has long been central to Canadian sentencing (see, e.g., R. v. Wilmott, 1966 222 (ON CA), [1966] 2 O.R. 654 (C.A.)) and is now codified as the "fundamental principle" of sentencing in s. 718.1 of the Criminal Code. [31] Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similar sentences. This principle also has a long history in Canadian law (see, e.g., Wilmott) and is now codified in s. 718.2(b) of the Criminal Code. [32] Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistent application of proportionality will lead to parity. Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality (R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 36-37; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 78-79). [33] In practice, parity gives meaning to proportionality. A proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases. Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody the collective experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality. --- #### (2) Role of Appellate Courts [34] Appellate courts have a dual role in sentence appeals (Lacasse, at paras. 36-37). Correcting errors in sentencing ensures both that the principles of sentencing are correctly applied and that sentences are not demonstrably unfit. Appellate courts also have a role in developing the law and providing guidance. Usually, in keeping with the common law emphasis on precedent, appellate guidance reflects and summarizes the existing law. The appellate court will distill many precedents into a single statement, a range of sentences or perhaps a starting point, that the sentencing judge can more readily use. [35] Sometimes, an appellate court must also set a new direction, bringing the law into harmony with a new societal understanding of the gravity of certain offences or the degree of responsibility of certain offenders (R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290, at para. 239). When a body of precedent no longer responds to society's current understanding and awareness of the gravity of a particular offence and blameworthiness of particular offenders or to the legislative initiatives of Parliament, sentencing judges may deviate from sentences imposed in the past to impose a fit sentence (Lacasse, at para. 57). That said, as a general rule, appellate courts should take the lead in such circumstances and give sentencing judges the tools to depart from past precedents and craft fit sentences. --- #### (3) Ranges of Sentence and Starting Points [36] Canadian appellate courts often provide guidance in the form of ranges of sentences, which are "summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives" (Lacasse, at para. 57). Some courts, particularly Alberta's, use starting points as an alternative. Similar principles apply to either form of guidance. [37] This Court has repeatedly held that sentencing ranges and starting points are guidelines, not hard and fast rules (R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948, at para. 33; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 45; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 44; Lacasse, at para. 60). Appellate courts cannot treat the departure from or failure to refer to a range of sentence or starting point as an error in principle. Nor can they intervene simply because the sentence is different from the sentence that would have been reached had the range of sentence or starting point been applied (McDonnell, at para. 42). Ranges of sentence and starting points cannot be binding in either theory or practice, and appellate courts cannot interpret or apply the standard of review to enforce them, contrary to R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199, at paras. 116-18 and 273. As this Court held in Lacasse, to do so would be to usurp the role of Parliament in creating categories of offences (paras. 60-61; see also McDonnell, at paras. 33-34). [38] The deferential appellate standard of review is designed to ensure that sentencing judges can individualize sentencing both in method and outcome. Sentencing judges have considerable scope to apply the principles of sentencing in any manner that suits the features of a particular case. Different methods may even be required to account properly for relevant systemic and background factors (Ipeelee, at para. 59). Similarly, a particular combination of aggravating and mitigating factors may call for a sentence that lies far from any starting point and outside any range (see Lacasse, at para. 58; Nasogaluak, at para. 44; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 4). [39] A range or starting point should only be created for a category of offences that share enough common features that it is useful to judge them by the same rubric. When an appellate court outlines a range or starting point, it must also provide a clear description both of the category created and the logic behind it (Stone, at para. 245). Without this description, it can be difficult to tell when the range or starting point is appropriate and how to use it. --- #### (4) Concerns About Starting Points [40] Before this Court, the interveners the Legal Aid Society of Alberta ("LASA") and the Criminal Trial Lawyers' Association ("CTLA") raised broader concerns about the operation of the starting point method. Their concerns went beyond the issues that were settled in McDonnell. Indeed, LASA questioned whether the starting point methodology is an effective means of appellate guidance and argued that it suffers from deficiencies. The interveners suggest that starting points can fetter discretion, limit the effect of case-specific factors, and result in sentences that cluster around the starting point. They submit that the effect of starting points is an unjustified higher rate of imprisonment and the reproduction of systemic bias against Indigenous offenders. In addition, the interveners suggest starting point sentencing, with its reliance on the "typical" offender and offence, is unnecessarily complicated and hypothetical. When many mitigating factors are "built into" a starting point, the starting point can become in effect a minimum sentence. [41] Many practitioners, judges, and academics have consistently expressed these concerns (see, e.g., A. Manson"McDonnell and the Methodology of Sentencing" (1997), 6 C.R. (5th) 277; J. Rudin"Eyes Wide Shut: The Alberta Court of Appeal's Decision in R. v. Arcand and Aboriginal Offenders" (2011), 48 Alta. L. Rev 987; L. Silver, Sentencing to the Starting Point: The Alberta Debate, May 23, 2019 (online)). We realize that the Alberta Court of Appeal has repeatedly defended the utility of the starting point methodology in the face of these concerns (see Arcand, at paras. 130-46; R. v. Parranto, 2019 ABCA 457, 98 Alta. L.R. (6th) 114, at paras. 28-38; see also P. Moreau"In Defence of Starting Point Sentencing" (2016), 63 Crim. L.Q. 345). However, this Court has not yet addressed these concerns. We make no comment on the merits of these concerns. Nor should anything in these reasons be taken to suggest that starting points are no longer a permissible form of appellate guidance. While we have determined that this case does not provide an appropriate opportunity to assess the merits of these concerns, they raise an issue of importance that should be resolved in an appropriate case. --- ### C. Sentencing Principles for Sexual Offences Against Children [42] Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. Our society is committed to protecting children and ensuring their rights and interests are respected (Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at para. 67). As Otis J.A. stated in R. v. L. (J.-J.) (1998), 1998 12722 (QC CA), 126 C.C.C. (3d) 235 (Que. C.A.), [translation] "the protection of children constitute[s] one of the essential and perennial values" of Canadian society (p. 250). Protecting children from becoming victims of sexual offences is thus vital in a free and democratic society (R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320, at para. 23). [43] This case presents an opportunity for this Court to consider the sentencing principles for sexual offences against children. Sentencing is one of the most important and "most delicate stages of the criminal justice process" (Lacasse, at para. 1). It is at this stage that the judge must weigh the wrongfulness of sexual violence and the harm that it causes and give effect to both in imposing a sentence (C. L. M. Boyle, Sexual Assault (1984), at p. 171). It is important for this Court to provide guidance so that sentencing judges impose sentences that accurately reflect the nature of sexual offences against children and their impact on the victim (see P. Marshall"Sexual Assault, The Charter and Sentencing Reform" (1988), 63 C.R. (3d) 216, at p. 219). To do otherwise would improperly permit myths that Parliament and this Court have striven to drive out of the law of evidence and substantive criminal law to simply re-emerge at the sentencing stage (R. P. Nadin-Davis"Making a Silk Purse? Sentencing: The 'New' Sexual Offences" (1983), 32 C.R. (3d) 28, at p. 46). This result could undermine the credibility of the criminal justice system in the eyes of victims, their families, caregivers, and communities, and the public at large (see Lacasse, at para. 3). [44] Given the facts of this case, the guidance we provide is focused on sentencing principles for the offence of sexual interference and closely related offences such as invitation to sexual touching (Criminal Code, s. 152), sexual exploitation (Criminal Code, s. 153(1)), incest (Criminal Code, s. 155), and sexual assault (Criminal Code, s. 271). However, the principles that we outline also have relevance to sentencing for other sexual offences against children, such as child luring (Criminal Code, s. 172.1).[^2] Courts should thus draw upon the principles that we set out in this case when imposing sentences for such other sexual offences against children. Courts may also draw upon these principles when imposing sentences for child abduction and human trafficking offences where the victim is a child and the factual foundation for the conviction involves sexual violence or exploitation.[^3] [45] We wish to make clear at the outset of our discussion of these sentencing principles that we recognize that criminal justice responses alone cannot solve the problem of sexual violence against children. Rather, guaranteeing children in Canada a childhood free of sexual violence requires coordinated action by all levels of government and by civil society across policy domains as diverse as healthcare, education, and child welfare. Nonetheless, the criminal law in general and sentencing law specifically are important mechanisms that Parliament has chosen to employ to protect children from sexual violence, to hold perpetrators accountable, and to communicate the wrongfulness of sexual violence against children. It is our duty to give Parliament's sentencing initiatives their full effect. --- #### (1) Contemporary Understanding of Sexual Violence Against Children ##### (a) Prevalence and Role of Technology [46] Because protecting children is so important, we are very concerned by the prevalence of sexual violence against children. This "pervasive tragedy that has damaged the lives of tens of thousands of Canadian children and youths" continues to harm thousands more children and youth each year (Canada, Committee on Sexual Offences Against Children and Youths, Sexual Offences Against Children: Report of the Committee on Sexual Offences Against Children and Youths (1984), vol. 1, at p. 29 ("Badgley Committee")). In Canada, both the overall number of police-reported sexual violations against children and police-reported child luring incidents more than doubled between 2010 and 2017, and police-reported child pornography incidents more than tripled (Canada, Department of Justice Research and Statistics Division, Just Facts: Sexual Violations against Children and Child Pornography, March 2019 (online), at pp. 1-2). Courts are seeing more of these cases (R. v. M. (D.), 2012 ONCA 520, 111 O.R. (3d) 721, at para. 25). Whatever the reason for the increase in police-reported incidents, it is clear that such reports understate the occurrence of these offences (R. v. L. (W.K.), 1991 54 (SCC), [1991] 1 S.C.R. 1091, at pp. 1100-1101). [47] New technologies have enabled new forms of sexual violence against children and provided sexual offenders with new ways to access children. Social media provides sexual offenders "unprecedented access" to potential child victims (R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 102). The Internet both directly connects sexual offenders with child victims and allows for indirect connections through the child's caregiver. Online child luring can be both a prelude to sexual assault and a way to induce or threaten children to perform sexual acts on camera (see R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81; R. v. Rafiq, 2015 ONCA 768, 342 O.A.C. 193). The Internet has also "accelerated the proliferation of child pornography" (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 114, per Deschamps J.). [48] Technology can make sexual offences against children qualitatively different too. For instance, online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child's life at any time (R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 92; R. v. S. (J.), 2018 ONCA 675, 142 O.R. (3d) 81, at para. 120). [49] Both Parliament and the courts have begun to respond to the prevalence of, new forms of, and qualitative changes in sexual violence against children. Parliament has attempted to keep pace with these developments by amending sentencing provisions for sexual offences against children (K.R.J., at para. 103). Courts too have been on a "learning curve" to understand both the extent and the effects of sexual violence against children and sentencing has evolved to respond to the prevalence of these crimes (R. v. F. (D.G.), 2010 ONCA 27, 98 O.R. (3d) 241, at para. 21). --- ##### (b) Understanding the Wrongfulness and Harmfulness of Sexual Violence [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 right is important. As Pepall J.A. recognized in R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752 ("*Stuckless* (2019)"), failure to recognize or appreciate the interests that the legislative scheme of offences protects can result in unreasonable underestimations of the gravity of the offence (paras. 120, 122, 130 and 137; see also Marshall, at pp. 219-20). Similarly, it can result in stereotypical reasoning filtering into the sentencing process and the consequent misidentification and misapplication of aggravating and mitigating factors (J. Benedet"Sentencing for Sexual Offences Against Children and Youth: Mandatory Minimums, Proportionality and Unintended Consequences" (2019), 44 Queen's L.J. 284, at pp. 288 and 309; M. M. Wright, Judicial Decision Making in Child Sexual Abuse Cases (2007), at pp. xii-xiii and 39). Properly understanding the harmfulness 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 (Stone, at para. 239; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 200). --- ##### (i) Personal Autonomy, Bodily Integrity, Sexual Integrity, Dignity and Equality [51] 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. This Court recognized the importance of these interests in Sharpe in the context of the production of child pornography. As this Court reasoned, the production of child pornography traumatizes children and violates their autonomy and dignity by treating them as sexual objects, causing harm that may stay with them for their entire lifetime (para. 92, per McLachlin C.J., and para. 185, per L'Heureux-Dubé, Gonthier and Bastarache JJ.). Sexual violence against children is thus wrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity (see Sharpe, at paras. 172, 174 and 185, per L'Heureux-Dubé, Gonthier and Bastarache JJ.). [52] We would note that the personal autonomy interest carries a somewhat different meaning for children than it does for adults. Children under the age of 16 of course lack the capacity to consent to sexual contact with an adult. As we will explain in detail later in these reasons, a child's participation in such contact is not a mitigating factor and should never be equated to consent. Instead, personal autonomy refers to a child's right to develop to adulthood free from sexual interference and exploitation by adults (see Sharpe, at para. 185). [53] In 1987, Parliament created the modern legislative scheme of sexual offences against children by enacting Bill C-15, An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985, c. 19 (3rd Supp.). In so doing, Parliament replaced the previous offences based on the gender of the victim or the presence of penile penetration with "child-specific gender-neutral offences not dependent upon proof of penile penetration" (A. McGillivray"Abused Children in the Courts: Adjusting the Scales after Bill C-15" (1990), 19 Man. L.J. 549, at p. 556). As Professor Anne McGillivray wrote, Parliament thus shifted the focus of sexual offences against children from chastity or propriety to a "child-centred" approach that emphasizes the trauma to the child victim from all acts of sexual violence (pp. 558-60). The modern prohibition on sexual interference thereby gives effect to "Parliament's recognition that adult/youth sexual relationships are inherently exploitative" by reason of the lack of maturity, judgment, and experience of children (R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 26; R. v. Hajar, 2016 ABCA 222, 39 Alta. L.R. (6th) 209, at para. 229). [54] The enactment of Bill C-15 also illustrates how Parliament sought to protect children's equality interest. Parliament enacted Bill C-15 following the reports of the Committee on Sexual Offences Against Children and Youths and the Special Committee on Pornography and Prostitution. Both reports emphasized the need for any reform of the scheme of sexual offences against children to guarantee children the equal protection of their interests in autonomy, dignity and physical and sexual integrity (Badgley Committee, vol. 1, at pp. 39 and 292; Canada, Special Committee on Pornography and Prostitution, Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution (1985), vol. 1, at p. 24 ("Fraser Committee"); Fraser Committee, vol. 2, at p. 563). Both reports also concluded that the failures of the existing scheme of sexual offences against children disproportionately affected girls and young women because they were disproportionately victimized (Badgley Committee, vol. 1, at p. 180; Fraser Committee, vol. 2, at p. 573). In his speech introducing Bill C-15, then Minister of Justice Ray Hnatyshyn highlighted the conclusions of both reports. He referred to statistics from the report of the Committee on Sexual Offences Against Children and Youths showing that children are disproportionately vulnerable to sexual offences and that girls and young women are disproportionately victimized relative to boys. The Minister emphasized that the reform of the scheme of sexual offences against children would guarantee children "the equal degree of protection of the law" and provide them "more complete protection . . . from all manner of sexual abuse" (House of Commons Debates, vol. 1, 2nd Sess., 33rd Parl., November 4, 1986, at p. 1037). [55] These developments are connected to a larger shift, as society has come to understand that the focus of the sexual offences scheme is not on sexual propriety but rather on wrongful interference with sexual integrity. As Professor Elaine Craig notes"This shift from focusing on sexual propriety to sexual integrity enables greater emphasis on violations of trust, humiliation, objectification, exploitation, shame, and loss of self-esteem rather than simply, or only, on deprivations of honour, chastity, or bodily integrity (as was more the case when the law's concern had a greater focus on sexual propriety)" (E. Craig, Troubling Sex: Towards a Legal Theory of Sexual Integrity (2012), at p. 27; see also J. Desrosiers et G. Beausoleil-Allard, L'agression sexuelle en droit canadien (2017), 2e éd., at pp. 3-4). [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. Sexual violence against children can cause serious emotional and psychological harm that, as this Court held in R. v. McCraw, 1991 29 (SCC), [1991] 3 S.C.R. 72"may often be more pervasive and permanent in its effect than any physical harm" (p. 81). [57] A number of this Court's decisions provide insight into these forms of harm. In R. v. L. (D.O.), 1993 46 (SCC), [1993] 4 S.C.R. 419, L'Heureux-Dubé J. emphasized the emotional trauma that the nine-year old victim suffered, including "depression, anxiety, low self-esteem, disrupted development of her sense of self-worth, and her inability to trust others" (p. 442). In R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, McLachlin C.J. emphasized the "far-reaching and long-lasting" harm of sexual assault, including "harm to dignity, autonomy and privacy" (para. 46). And in R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, this Court emphasized that child luring causes "lasting psychological harm" (para. 58). [58] These forms of harm are particularly pronounced for children. Sexual violence can interfere with children's self-fulfillment and healthy and autonomous development to adulthood precisely because children are in a critical stage of their development. As the Badgley Committee recognized"[t]he sexual victimization of children and youth has been found to be related to a broad range of immediate and long-term physical and psychological disorders" (Badgley Committee, vol. 1, at p. 175). The harm suffered by children who are victimized can be severe and long-lasting. [59] Unfortunately, courts do not always have direct evidence of the harm that a victim suffered. However, courts should not underestimate the harm simply because evidence of harm is absent. First, children may be too young to articulate the harm they have suffered or may not yet understand the impact of the offence. Second, the consequences of the harm may only become apparent later in life. Third, the harm may be hidden by emotional disorders, anti-social behaviour, or self-medication through alcohol or drugs. Fourth, the child's caregivers may not notice or report the harm. Courts can and should draw inferences about the harm that flows from sexual violence against children, with or without direct evidence of the harm, having regard to what is known about the effect of such violence. Even absent evidence of harm, courts can and should presume that sexual violence causes harm to children. [60] To reinforce this point, this Court has approved of trial courts drawing inferences about a victim's harm from the nature of the offence (see Woodward, at paras. 62-63, approved below). As Watt J.A. noted in Woodward, courts can reason that a young child who is the victim of sexual violence "inevitably suffer[s] serious psychological harm as a result" (para. 62). Similarly, in R. v. D. (D.) (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788, Moldaver J.A. held that "the psychological harm flowing from being the victim of sexual abuse at the hands of a trusted caregiver can be devastating and that it typically manifests itself in a variety of debilitating and oftentimes lifelong disorders" (para. 33, approved below). [61] Sexual violence against children can also harm the child's family, caregivers, and community. As the victims' families, caregivers, and community members observe the impact of sexual violence on a child they love, they will often experience grief, helplessness, guilt, and anger, even shame, as they struggle to understand what they could have done to prevent the harm. The Canadian Victims Bill of Rights, S.C. 2015, c. 13, s. 2, defines a victim as "an individual who has suffered physical or emotional harm, property damage or economic loss as a result of the commission of a designated offence" and also includes those "who act in the place of an individual referred to" in that definition. As this Court has recognized, the Criminal Code requires judges to consider the impact of the crime on "the victim and the community" (s. 718(a)); all victims and communities should be understood in the broad sense. [62] Courts must also recognize the particular vulnerability of children to sexual violence. Children are vulnerable to sexual violence because adults can exploit their immaturity, trust, and dependency to engage in sexual violence. Children often lack the capacity to identify and report sexual violence. Courts must recognize the reality of how sexual violence against children occurs and who the victims are: studies have found that girls are disproportionately victimized (Badgley Committee, vol. 1, at pp. 180-81; Fraser Committee, vol. 2, at p. 573; Canada, Statistics Canada, Police-reported sexual offences against children and youth in Canada, 2012 (2014), at p. 9); Indigenous children are disproportionately victimized (Badgley Committee, vol. 1, at p. 197; Canada, Senate, Standing Senate Committee on Human Rights, The Sexual Exploitation of Children in Canada: the Need for National Action (November 2011), at pp. 42-43); children with disabilities are disproportionately victimized (Statistics Canada, Violent victimization of women with disabilities, 2014 (2018), at p. 1; United Nations, General Assembly, Report of the independent expert for the United Nations study on violence against children, U.N. Doc. A/61/299, August 29, 2006, at para. 39); and children in the care of the state are disproportionately victimized (British Columbia, Representative for Children and Youth, Too Many Victims: Sexualized Violence in the Lives of Children and Youth in Care (2016), at p. 3; Ontario, The Cornwall Public Inquiry, Report of the Cornwall Inquiry (2009), at pp. 43-44). [63] Courts must also give recognition to the intersecting nature of these vulnerabilities. For example, Indigenous girls are even more vulnerable to sexual violence than non-Indigenous girls because they face intersecting vulnerabilities associated with race, gender, and age (Badgley Committee, vol. 1, at pp. 189-91; Canada, Statistics Canada, Victimization of Aboriginal people in Canada, 2014 (2016), at pp. 9-11; see also T. Lindberg, P. Campeau, and M. Campbell"Indigenous Women and Sexual Assault in Canada", in E. A. Sheehy, ed., Sexual Assault in Canada: Law, Legal Practice and Women's Activism (2012), 87, at pp. 88-89). LGBT children are also particularly vulnerable to sexual violence (M. Koppel"It's Not Just a Heterosexual Issue: A Discussion of LGBT Sexual Assault Victimization", in F. P. Reddington and B. W. Kreisel, eds., Sexual Assault: The Victims, the Perpetrators, and the Criminal Justice System (2017), 257, at pp. 258-60). [64] Courts must consider these vulnerabilities and the disproportionate impact of sexual violence on these groups. A court must be alert to these realities even if the victim is not a member of one of these groups. However, when the victim is a member of one of these groups, and especially when the offender knew of and exploited these vulnerabilities, this should be considered as an aggravating factor. [65] We wish to note that sexual violence against children is generally underreported. Some studies have concluded that only between 1 in 6 and 1 in 8 sexual assaults against children are reported to police (Badgley Committee, vol. 1, at pp. 196-97; B. Perrin, Victim Law: The Law of Victims of Crime in Canada (2017), at p. 4). This underreporting means that the true prevalence of sexual violence against children is much higher than the statistics captured by the criminal justice system. This reality should contribute to ensuring that sentences reflect the gravity of these offences and act as a deterrent. [66] We would also comment on the particular harms associated with extrafamilial sexual violence against children. Children are harmed by extrafamilial sexual violence even in the absence of a trust relationship. Sexual violence harms the bodily and sexual integrity and dignity of children, whether the offender is a family member or a stranger. Extrafamilial sexual violence can often cause serious harm to the victim's relationship with their parents and caregivers. [67] Extrafamilial sexual violence can also harm the child's parents or other caregivers. The harm to families, caregivers, and communities is particularly acute when a perpetrator manipulates a caregiver into participating in the sexual violence, as happened here. In such a case, the perpetrator effectively weaponizes the caregiver's relationship with the child by exploiting her trust in the offender and using it as a vehicle to harm the child. The caregiver is placed in an impossible situation: she is used to harm the child that she loves, and may later suffer guilt, shame, and grief. In addition, when the perpetrator-child relationship is contaminated by the involvement of the caregiver, the child's subsequent relationship with the caregiver may be harmed. [68] Courts must recognize that the harm to the child and the harm to the child's family, caregivers, and communities can be mutually reinforcing. When the child's primary caregivers are unable to provide the care and support that the child needs, the child is left to deal with the trauma of sexual violence without adequate support. This will deepen the child's harm. Thus, harm to the child's support network, while distinct from the harm to the child, can be an aggravating factor. [69] The particular harm of extrafamilial sexual violence committed in concert with a caregiver is well illustrated by the facts of this case. At paras. 176-80 of these reasons, we discuss specific aggravating factors arising from the circumstances of this case. [70] To briefly summarize the foregoing, we have discussed how courts should understand the wrongfulness and harmfulness of sexual violence against children. Sexual violence against children is wrong because it invades the personal autonomy, bodily and sexual integrity, dignity, and equality of children. It is harmful because it causes serious emotional and psychological harm to children and to their families, caregivers, and communities. In particular, courts should avoid any tendency to underestimate harm, especially in the absence of evidence of the specific harm in the case before them. Courts should draw inferences about harm from the nature of the offence. [71] The prime consequences that flow from this understanding are: courts must give effect to the harm to children and their families, caregivers, and communities; courts must give effect to the wrongfulness of sexual violence against children; and courts must give recognition to the particular vulnerability of children to sexual violence. [72] How can courts ensure that they are treating the wrongfulness and harmfulness of sexual violence against children properly? We endorse the approach taken by Pepall J.A. in Stuckless (2019). We would urge courts to ask the following questions when sentencing for sexual offences against children: What interests are at stake? What harm has been or could reasonably be expected to be caused? What actions has the offender taken and what attitudes has the offender expressed that make him blameworthy for the harm? And has the sentencing process identified and considered evidence of harm to the victim and other persons affected by the offence? [73] If the answer to these questions reflects a proper understanding of the wrongfulness and harmfulness of sexual violence against children, the sentencing process is more likely to produce a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender, without any bias or myths filtering into the process. We will return to this framework in our discussion of sentencing principles. --- #### (2) Sentencing Must Reflect the Contemporary Understanding of Sexual Violence Against Children [74] We now turn to the intersection of these principles with the sentencing principles of proportionality and parity. Both are fundamental to the law of sentencing and both must be properly applied in cases involving sexual offences against children. [75] We start by noting that courts should not simply defer to past sentencing ranges in cases involving sexual offences against children. As we explain in these reasons, courts should instead impose sentences commensurate with the gravity of these offences as properly understood, taking into account Parliament's sentencing initiatives and courts' evolving understanding of the wrongfulness and harmfulness of these offences. [76] Courts must impose sentences commensurate with the grave harm caused by sexual violence against children. This means imposing sentences that: (1) accurately reflect the wrongfulness of sexual violence against children, including the inherent wrongfulness, the potential harm, and the actual harm; (2) properly apply the principle of proportionality to these offences, including by taking into account the wrongfulness and harmfulness of these offences and Parliament's sentencing initiatives; and (3) properly apply the principle of parity by calibrating sentences by reference to the sentences imposed by other courts in similar cases, as well as to any sentencing guidance from appellate courts, while recognizing that some past sentencing ranges or starting points may no longer be appropriate. [77] We wish to be clear: we are not directing courts to simply impose higher sentences. Rather, we are directing courts to ensure that their sentences are commensurate with the true gravity of sexual offences against children as properly understood. In many cases, these sentences will be higher than past sentences; in some cases, they may not be. The key is that courts fully understand and give effect to the wrongfulness and harmfulness of sexual offences against children as we have described in these reasons. [78] We have noted that courts must understand the wrongfulness and harmfulness of sexual violence against children and the particular vulnerability of children to such violence. Sentencing must also reflect these considerations. Specifically, courts must give effect to: (1) the inherent wrongfulness of sexual offences against children; (2) the potential harm to children; and (3) the actual harm that children suffer. [79] First, sexual offences against children are inherently wrongful. They invade the personal autonomy, bodily and sexual integrity, dignity, and equality of children. Courts must always recognize this wrongfulness, which derives from the nature of the offence and not from any particular consequence. The fact that harm may not be as severe in some cases does not mean that the wrongfulness of the offence is any less. [80] Second, sexual offences against children always put children at risk of harm. As we have discussed, the emotional and psychological harm that flows from sexual violence against children can be devastating and lasting. Courts must recognize both the potential harm from the offence and the risk of harm that was created by the offence. [81] Third, courts must give effect to the actual harm that children suffer. This means looking not just at the physical harm but also at the emotional and psychological harm, which is often more pervasive and permanent. It also means looking at the harm to the child's family, caregivers, and community. [82] Courts must also take into account the offender's degree of responsibility. Sexual violence against children is highly morally blameworthy, for the reasons discussed earlier: the offender is or ought to be aware that this action can profoundly harm the child; it involves the wrongful exploitation of the child; and children are so vulnerable. [83] Courts must also give effect to the sentencing objectives of denunciation and deterrence in cases involving sexual violence against children. Parliament has prioritized these objectives (s. 718.01 of the Criminal Code). These objectives are particularly important in cases involving sexual violence against children because: the harm is so significant; the offences are often underreported; and general deterrence is particularly important to protect vulnerable children. [84] The foregoing principles are all well established in law. But courts do not always give them their proper effect. We will now draw out the specific lessons that flow from these principles and that courts must give effect to in order to properly sentence for sexual offences against children. [85] First, courts must recognize the inherent wrongfulness of sexual offences against children, regardless of the absence of evidence of harm. Sentencing judges should not give less weight to the gravity of an offence or the degree of responsibility of the offender because there is no direct evidence of harm in a particular case. Courts can and should draw inferences about harm from the nature of the offence, the circumstances of the victim, and what is known generally about the effect of sexual violence on children. [86] Second, courts must give effect to both potential harm and actual harm. Courts should not interpret the absence of direct evidence of harm as an indication that the potential harm was low. Many children do not manifest the harm they suffer until later in life, or do so indirectly through other behavioural manifestations. The absence of direct evidence of harm or of a victim impact statement should not be understood as an indication that no harm was suffered. [87] Third, courts must properly give effect to the wrongfulness of sexual violence against children when identifying and weighing aggravating and mitigating factors. Courts should not minimize the significance of any aggravating factor by applying traditional notions of sexual propriety, as the specific type of physical activity at issue should not affect how courts identify or weigh aggravating factors (with the possible exception of the degree of physical interference). Courts should also not treat the absence of a trust relationship between the offender and victim as significantly mitigating. [88] Fourth, courts must properly give effect to the degree of responsibility of the offender. Courts must recognize that sexual violence against children is highly morally blameworthy because: the offender is or ought to be aware of the harm; it involves the exploitation of children's vulnerability; and children are so vulnerable. Courts must not fail to give appropriate weight to the moral blameworthiness of offenders who commit sexual violence against children. [89] Fifth, courts must properly give effect to the sentencing objectives of denunciation and deterrence. Parliament has established that these are the primary objectives for sexual offences against children. Courts must not fail to give full effect to these objectives, and in particular they must not give too much weight to rehabilitation relative to these objectives. [90] Sixth, courts must not permit myths about sexual violence to filter into the sentencing process. The harm to children can easily be under-estimated; courts must guard against this. Courts must not minimize the seriousness of sexual violence against children based on traditional notions of sexual propriety, such as the absence of penile penetration or the belief that the offence was less harmful than other offences because it did not cause physical harm. [91] Seventh, courts must properly apply the principle of parity by ensuring that sentences for sexual offences against children are commensurate with sentences for similar offences in similar circumstances. In particular, courts should not import sentencing guidance from adult sexual assault cases into cases involving sexual offences against children. [92] These principles apply to both the sentencing judge and appellate courts. Appellate courts play an important role in ensuring that sentencing judges apply these principles correctly. Appellate courts also have a role in developing the law and setting sentencing guidance that gives effect to these principles. [93] We do not want these principles to be lost in the abstractions. There are simple and direct lessons to draw from these principles: (1) sentencing for sexual offences against children must start from the recognition that these are serious offences that always wrongfully exploit children's vulnerability and cause harm; (2) sentences must accurately reflect the wrongfulness and harmfulness of these offences; (3) sentences must properly account for the degree of responsibility of the offender; and (4) sentences must give full effect to the sentencing objectives of denunciation and deterrence. [94] Courts must give effect to these lessons when sentencing for sexual offences against children. They must do so in a way that is consistent with the principle of proportionality and parity, and they must do so by reference to Parliament's sentencing initiatives and the contemporary understanding of the wrongfulness and harmfulness of these offences. --- #### (3) Parliament Has Mandated That Sentences for Sexual Offences Against Children Must Increase [95] Parliament has recognized the serious nature of sexual offences against children and has repeatedly amended the Criminal Code to increase the maximum sentences for these offences. These amendments represent Parliamentary direction that sentences for sexual offences against children must increase. [96] Parliament enacted the original child-specific offences in 1987. At that time, the maximum sentence for sexual interference was 10 years. Parliament first increased the maximum sentence for sexual interference when it enacted the Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32. Parliament subsequently increased the maximum sentence again when it enacted the Tackling Violent Crime Act, S.C. 2008, c. 6. Most recently, Parliament increased the maximum sentence to 14 years when it enacted the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23 (see Appendix). Parliament has also established mandatory minimum sentences for these offences (see, e.g., Criminal Code, s. 151). [97] The increases in maximum sentences for these offences reflect Parliament's view of their gravity. Each increase signals Parliament's view that sentencing for these offences needs to increase. Courts must take heed of these signals and ensure that sentences for sexual offences against children reflect these increases. [98] The Tougher Penalties for Child Predators Act provides particularly useful guidance. It increased the maximum sentences for most sexual offences against children by 40 percent. This substantial increase reflects Parliament's view that sentences for these offences were not commensurate with their gravity and that sentencing needed to shift significantly. Courts must give effect to Parliament's clear direction by increasing sentences in these cases. [99] Parliament has also directed courts to prioritize the sentencing objectives of denunciation and deterrence in cases involving sexual violence against children. Section 718.01 of the Criminal Code requires courts to give primary consideration to the objectives of denunciation and deterrence for offences "that involve the abuse of a person under the age of eighteen years." Parliament thus determined that these objectives must be prioritized over all others, including rehabilitation and parity. This direction signals Parliament's clear intent that sentences for these offences must be significant and must send a strong message of denunciation to society. [100] Parliament's sentencing initiatives also limit the extent to which sentences for sexual offences against children can be reduced based on mitigating factors. The primacy of denunciation and deterrence means that even a significant set of mitigating factors cannot override Parliament's direction to impose a significant sentence. While mitigating factors are still relevant, they carry less weight when balanced against Parliament's direction to prioritize denunciation and deterrence. [101] We note that the principle of proportionality requires courts to give effect to Parliament's sentencing initiatives. As this Court held in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773"[t]he role of sentencing judges is to impose the sentence that best reflects and gives effect to Parliament's purposes" (para. 43). Courts must thus give effect to Parliament's clear direction that sentences for sexual offences against children must increase. [102] We acknowledge that these principles may sometimes be in tension with other sentencing principles and objectives. For example, sentences that properly reflect the gravity of sexual offences against children may sometimes create unintended sentencing disparities, particularly for vulnerable offenders. Courts must be mindful of such disparities and must address them if they arise. As this Court held in Gladue and Ipeelee, courts must take into account systemic and background factors when imposing sentences on Indigenous offenders. These principles apply when sentencing Indigenous offenders for sexual offences against children just as they apply in other contexts. [103] Similarly, mandatory minimum sentences for these offences raise concerns about proportionality and the sentencing of vulnerable offenders. In this case, we are not asked to rule on the constitutionality of any mandatory minimum sentence. We make no comment on that issue. [104] We also recognize that there may be cases where it would not be appropriate to simply extrapolate from Parliament's increases in maximum sentences to increase a particular sentence. For example, it may not be appropriate to increase a sentence for a first-time offender who poses a low risk to reoffend if the increase would be grossly disproportionate to the offender's degree of responsibility. Courts must always ensure that their sentences are proportionate to both the gravity of the offence and the degree of responsibility of the offender. [105] That said, the general direction is clear: courts must impose sentences for sexual offences against children that are commensurate with their gravity, as understood by reference to Parliament's repeated increases in maximum sentences and the contemporary understanding of the wrongfulness and harmfulness of these offences. --- #### (4) Specific Guidance on Sentence Increases [106] Having outlined the overarching principles, we will now provide specific guidance on sentence increases for three issues that have arisen in the sentencing of sexual offences against children. [107] First, upward departure from prior precedents and sentencing ranges should be the norm for sexual offences against children, not the exception. Courts are justified in departing from dated precedents that do not reflect society's current awareness of the impact of sexual violence on children. There is no need for the circumstances to be "exceptional" or "rare" to depart upwards from a past sentencing range. As we have explained, Parliament's increases in maximum sentences and courts' deepened understanding of the harm caused by sexual violence both justify upward departures from past sentencing ranges. [108] There is concern about sentencing ranges for sexual offences against children that effectively set a "cap" on sentences in all but exceptional circumstances. Such sentencing ranges conflict with the principles that we have outlined in these reasons: they give insufficient effect to Parliament's sentencing initiatives; they reflect a misunderstanding of the gravity of these offences; and they create an arbitrary restriction on sentencing judges' discretion that has no basis in principle. Courts must not treat past sentencing ranges as effectively capping sentences for sexual offences against children. Instead, they should treat these ranges as a baseline and impose sentences that reflect the increases in the gravity of the offence that flow from Parliament's sentencing initiatives and the contemporary understanding of the wrongfulness and harmfulness of sexual violence against children. [109] We would reiterate the guidance from Lacasse that "[a]ny deviation from a sentencing range must, of course, be justified. A sentence that is more lenient than the sentences in the range of sentences must be justified, just as a sentence that is stricter than the sentences in the range of sentences must be justified" (para. 70). Courts must be able to explain why they are departing from a sentencing range, whether upwards or downwards. Departures from past sentencing ranges must be justified by reference to the principles of sentencing and the circumstances of the case. [110] Sentences in the mid-single digit range are normal for sexual offences against children, and sentences in the upper-single digit and double digit range should be neither unusual nor reserved for exceptional circumstances. A maximum sentence should be imposed whenever the circumstances warrant it. These statements are not a direction to sentence all sexual offences against children to lengthy penitentiary terms; they are a direction to ensure that sentencing reflects the gravity of these offences and is not artificially constrained by past sentencing ranges. [111] Second, courts must ensure that sentences for sexual offences against children reflect Parliament's determination that these offences are generally more serious than sexual offences against adults. Sexual offences against children attract higher maximum sentences than sexual offences against adults for good reason: children are more vulnerable, the harm is more severe, and the moral blameworthiness of the offender is heightened. [112] This distinction must be reflected in sentencing. Appellate courts that have set sentencing ranges or starting points for sexual violence against children that are similar to those for sexual violence against adults have not given proper effect to Parliament's determination. Such sentencing ranges and starting points must be revised. Appellate courts are directed to revise and rationalize sentencing ranges and starting points where they have not appropriately distinguished between sexual violence against children and sexual violence against adults. [113] We wish to acknowledge that R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132 was decided before Parliament's more recent amendments to the Criminal Code and before the courts' and society's deepened understanding of the wrongfulness and harmfulness of sexual offences against children. The sentencing range it endorsed no longer adequately reflects the gravity of sexual offences against children. The principles we have outlined in these reasons must now inform the sentencing of sexual offences against children, and the sentencing range in L.F.W. cannot constrain the proper application of those principles. [114] Third, treating the offence of sexual interference with a child as less serious than that of sexual assault of a person under the age of 16 is an error of law. Parliament has established the same maximum sentences for both offences. The elements of the offences are also similar, and a conviction for sexual assault of a child and for sexual interference with a child can frequently be supported on the same factual foundation. These two offences protect the same interests: the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children. They are thus equally grave offences. [115] This principle follows logically from the approach this Court took in R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021 to the relationship between sexual interference and sexual assault. In George, this Court held that it is an error of law to impose a more lenient sentence for sexual interference than would be appropriate for sexual assault "simply because the offence of sexual interference was charged rather than sexual assault" (para. 47). This principle must be applied consistently when courts are sentencing for the offences of both sexual interference and sexual assault of a person under the age of 16. [116] We recognize that some provincial appellate courts have held the contrary view (see, e.g., R. v. Viszlai, 2015 BCCA 495, 333 C.C.C. (3d) 234). These decisions do not correctly state the law. Sexual interference and sexual assault of a person under the age of 16 are equally grave offences. Provincial appellate courts should revise their sentencing ranges and starting points to reflect the equal gravity of these two offences. [117] These principles apply to the sentencing ranges and starting points for sexual offences against children across Canada. Appellate courts must revise their sentencing ranges and starting points where necessary to ensure that they reflect these principles. [118] We also wish to address an issue that has sometimes arisen in the sentencing of sexual offences against children: the relevance of sentences imposed in cases that predate Parliament's increases in maximum sentences. While these older cases can provide useful background, they cannot control the appropriate level of sentence today. Courts must always have regard to Parliament's most recent sentencing initiatives in determining the appropriate sentence for a sexual offence against a child. Sentences that were appropriate before Parliament increased the maximum sentences for these offences may no longer be appropriate today. [119] For greater clarity, we wish to briefly summarize our guidance on sentence increases for sexual offences against children. First, courts must ensure that sentences reflect the contemporary understanding of the wrongfulness and harmfulness of sexual violence against children and Parliament's most recent sentencing initiatives. Second, past sentencing ranges for sexual offences against children that do not reflect these principles should not be applied as caps on sentences; instead, they are a baseline that may be departed from upwards to reflect the proper gravity of these offences. Third, mid-single digit penitentiary sentences are the norm; upper-single digit and double digit sentences should not be treated as unusual or reserved for rare circumstances. Fourth, sentences for sexual offences against children should generally be higher than sentences for similar offences against adults. Fifth, the offences of sexual interference and sexual assault of a person under the age of 16 are equally grave offences and must be sentenced accordingly. [120] This guidance is intended to complement, not to supplant, the guidance from provincial appellate courts. We expect provincial appellate courts to translate these principles into appropriate sentencing ranges and starting points that reflect the realities of sentencing in their respective provinces. --- #### (5) Significant Factors to Determine a Fit Sentence [121] We will now provide guidance on the significant factors to consider when determining a fit sentence for sexual offences against children. These factors are not exhaustive; they are provided to assist courts in giving effect to the principles outlined in these reasons. Different factors will be more or less significant depending on the circumstances of the case. ##### (a) Risk to Reoffend [122] The higher the offender's risk to reoffend, the more the court needs to emphasize the sentencing objective of separating the offender from society to protect vulnerable children. We have noted earlier that children are at significant risk of harm from sexual violence and that this risk is not limited to the immediate offence. Courts must recognize the significant risk that a sexual offender poses to children in the community, especially where that offender poses a high risk to reoffend. [123] The risk of reoffence should be assessed with reference to all available evidence, including any actuarial assessments, the offender's history and circumstances, and any other relevant factors. Courts must give appropriate weight to the risk of reoffence and to the need to protect children from that risk. [124] When an offender has a high risk to reoffend, separation from society becomes a primary sentencing objective. Courts must ensure that sentences are long enough to allow the offender to receive the treatment and services necessary to reduce the risk of reoffence before being released into the community. If the offender is not amenable to treatment or poses an indefinite risk to children, a longer sentence will be appropriate. --- ##### (b) Abuse of a Position of Trust [125] We also wish to offer some comments on the factor of the abuse of a position of trust (Criminal Code, s. 718.2(a)(iii)). Courts must give effect to the particularly grave wrongfulness and harmfulness of sexual violence against children that is committed by an offender in a position of trust. [126] Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence. As Saunders J.A. noted in R. v. L.F.W. (1997), 1997 10868 (NL CA), 155 Nfld. & P.E.I.R. 115, aff'd L.F.W. (SCC)"[a] breach of trust in a sexual offence against a child is a serious aggravating factor" (para. 32). The breach of trust causes harm to the victim by violating the child's basic expectations of safety, care, and protection from the person in a position of trust. It can also cause harm to the child's relationship with other caregivers, as the child may be less able to trust them after being harmed by an authority figure. [127] The presence of a trust relationship may inhibit children from reporting sexual violence. The breach of trust itself, and the child's knowledge that they were violated by someone they trusted, may cause the child to doubt themselves and delay reporting. It may also create fear that the offender or others will not believe them. These barriers to reporting are particularly significant for children who are already in a vulnerable position. [128] We would add that these barriers to reporting can be particularly pronounced where the perpetrator of the sexual violence holds a position of trust by virtue of their cultural, religious, or institutional authority. For example, Indigenous children may face particular barriers to reporting sexual violence committed by individuals in positions of cultural or community authority. Courts must be sensitive to these barriers and must give effect to them in sentencing. [129] The abuse of a position of trust is also aggravating because it increases the offender's degree of responsibility. The offender's decision to take advantage of their position of trust to commit sexual violence against a child shows a particularly callous disregard for the child's wellbeing and an intentional exploitation of the child's vulnerability. [130] We would thus emphasize that, 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. The abuse of a position of trust is a serious aggravating factor that must be given full effect in sentencing. --- ##### (c) Duration and Frequency [131] The duration and frequency of sexual violence is a further important factor in sentencing. The frequency and duration of the sexual violence gives the court important information about the gravity of the offence and the degree of responsibility of the offender. [132] The duration and frequency of the sexual violence must receive weight in sentencing. Judges should not discount the total harm suffered by a victim because the harm was spread over a long period of time or because there were many individual instances of sexual violence. To do so would fail to give effect to the cumulative harm suffered by the child and the full extent of the offender's conduct. [133] In sum, 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 and the offender's increased degree of responsibility. --- ##### (d) Age of the Victim [134] The age of the victim is also a significant aggravating factor. The power imbalance between children and adults is a fundamental feature of sexual violence against children. Children are inherently more vulnerable to harm than adults and the harm they suffer from sexual violence can be particularly severe and long-lasting. Children who are particularly young are even more vulnerable to sexual violence and are even less capable of protecting themselves or reporting the harm. [135] These realities flowing from the age of the victim are relevant to both the gravity of the offence and the degree of responsibility of the offender. The gravity of the offence increases with the vulnerability of the victim, as the same act of sexual violence will generally cause more harm to a younger victim than to an older victim. The degree of responsibility of the offender also increases because the offender is or ought to be aware that a younger child is more vulnerable to harm and less capable of protecting themselves or reporting the harm. [136] At the same time, courts must also be particularly careful to impose proportionate sentences in cases where the victim is relatively older (e.g., 14-15 years old). While the offence is still serious and the victim's vulnerability is real, the harm and the moral blameworthiness may be somewhat lower than in cases involving a very young victim. Courts must calibrate their sentences to reflect this reality. --- ##### (e) Degree of Physical Interference [137] Some provincial appellate courts have placed considerable emphasis on the degree of physical interference in setting sentencing ranges or starting points for sexual offences against children. For example: - British Columbia: Range of two to six years for "sexual assault involving intercourse" (*Scofield*, at para. 59). - Alberta: Three-year starting point for "major sexual assault" and "major sexual interference". Alberta courts presume that vaginal penetration, anal penetration, fellatio, and cunnilingus will constitute "major sexual assault" but there is no such presumption for other forms of sexual violence (Arcand, at paras. 188-90). - Manitoba: Also employs starting points premised on the Alberta definition of "major sexual assault" (R. v. R.W.T., 2006 MBCA 91, 208 Man.R. (2d) 60, at para. 4; Sidwell, at para. 38). - Newfoundland and Labrador: Three to five years' range for sexual assault against a child involving intercourse and abuse of a position of trust (*Vokey*, at para. 19). [138] We acknowledge that the degree of physical interference is a recognized aggravating factor. This factor reflects the reality that some types of physical acts do cause more harm or reflect a higher level of moral blameworthiness than others. Courts should continue to take into account the degree of physical interference when sentencing for sexual offences against children. [139] The degree of physical interference also takes account of how specific types of physical acts may increase the risk of specific harms to the child's physical health. For example, some types of physical interference carry a greater risk of physical injury than others. [140] We would not go so far in this case as to hold that defining a range or starting point according to the type of physical act is itself an error of law. However, we wish to raise five specific concerns about the way in which this factor has been applied. [141] First, defining a sentencing range based on a specific type of sexual activity risks resurrecting at sentencing stage the myths that Parliament sought to eliminate. Parliament replaced the previous offences, which were based on the gender of the victim or the presence of penile penetration, with "child-specific gender-neutral offences not dependent upon proof of penile penetration" (McGillivray, at p. 556). Parliament's decision to enact gender-neutral offences that did not depend on penetration was a deliberate attempt to shift the focus of the sexual offences scheme from sexual propriety to wrongful interference with sexual integrity. Any sentencing approach that attaches particular weight to the presence or absence of penetration risks undermining Parliament's intent. [142] Second, courts should not assume that there is any clear correlation between the type of physical act and the harm to the child. As we have explained, the harm from sexual violence against children is primarily emotional and psychological, not physical. Courts should resist the temptation to rank sexual offences against children according to a hierarchy of physical acts, since this approach is likely to understate the significance of offences that do not involve penetration. [143] The decision of the Ontario Court of Appeal in Stuckless (2019) provides an example of judicial recognition that a sentencing scheme based on a type of physical act can result in unreasonable underestimations of the gravity of the offence. In that case, Pepall J.A. found that the sentencing judge had erred by effectively treating the absence of intercourse as a mitigating factor (para. 130). Pepall J.A. held that this error reflected a failure to appreciate the interests that the offences protect and resulted in an unreasonable underestimation of the gravity of the offence (para. 130; see also D. (D.), at para. 32, approved below). [144] Specifically, we would strongly caution courts against downgrading the wrongfulness of the offence or the harm to the child simply because the physical interference did not involve intercourse. The absence of penile penetration does not mean that the offence is any less serious or that the harm to the child is any less significant. Courts must be sensitive to the particular harm caused by any act of sexual interference with a child, regardless of whether it involves penetration. [145] Third, we would emphasize that courts must recognize the wrongfulness of sexual violence even in cases where the degree of physical interference is less pronounced. The wrongfulness of sexual violence against children does not depend on the degree of physical interference; it depends on the wrongful exploitation of the child's vulnerability and the harm caused to the child's interests in personal autonomy, bodily integrity, sexual integrity, dignity, and equality. [146] Fourth, it is an error to understand the degree of physical interference factor in terms of a type of hierarchy of physical acts. Such a hierarchy is likely to result in unreasonable underestimations of the gravity of acts of sexual violence that do not fall at the top of the hierarchy. Courts must recognize that all acts of sexual violence against children are serious, regardless of where they fall on such a hierarchy. [147] Finally, we would recommend that courts cease to use terms such as "fondling" or "caressing" when referring to acts of sexual violence against children. These terms minimize the gravity of the act and may suggest a degree of tenderness or affection that is entirely inconsistent with the wrongfulness of the act. --- ##### (f) Victim Participation [148] Parliament has determined that the age of consent to sexual activity in Canada is 16 (see Bill C-2, Tackling Violent Crime Act, S.C. 2008, c. 6). Parliament has also determined that a victim's participation in a sexual act is not a mitigating factor in sentencing for sexual offences against children (Criminal Code, ss. 150.1(2.1), (2.2), (2.3)). [149] Despite this, courts have at times invoked the "de facto consent" of a child whom Parliament has determined cannot consent to sexual activity. As Pepall J.A. recognized in Stuckless (2019), this is an error: "calling [the victim's participation] a mitigating factor is contrary to the legislation" (para. 140). Courts must not treat a child's participation or apparent acquiescence in sexual activity as a mitigating factor. [150] Some courts have, while acknowledging that a victim's participation is not a mitigating factor, nevertheless allowed the victim's participation to influence their assessment of the gravity of the offence or the degree of the offender's responsibility. This too is an error. The gravity of the offence is not reduced by the victim's participation. The degree of the offender's responsibility is not reduced by the victim's participation. Courts must give full effect to Parliament's determination in this regard. [151] We would add the following to assist judges as they give practical effect to Parliament's decision that sentencing for sexual offences against children must not treat the victim's participation as a mitigating factor. First, courts must not equate a child's non-resistance or apparent acquiescence to "de facto consent." Children often lack the capacity to resist sexual violence or to understand that they have the right to do so. Their failure to resist does not indicate that they consented to the sexual activity. [152] Second, a victim's participation should not distract the court from the harm that the victim suffers as a result of sexual violence. The harm from sexual violence against children does not depend on the extent of the victim's participation; it depends on the wrongfulness of the act and its impact on the child's interests. [153] Third, in some cases, a victim's participation is the result of a campaign of grooming by the offender or of a breach of trust. In such cases, the victim's participation is itself an indication of the harm that the offender has caused. Courts must recognize that grooming that led to the victim's participation is an aggravating factor, not a mitigating one. [154] Finally, a victim's participation should never distract the court from the fact that adults always have a responsibility to refrain from engaging in sexual violence towards children. > Nor is it a mitigating factor that a child appears to acquiesce or even seek out the sexual attention of an adult. Where children appear to be seeking out such attention, it is often an outward manifestation of the child's confusion arising from personal difficulties. It is the legal responsibility of the adult to refuse. --- #### (6) Consecutive Sentences and Totality ##### (a) Consecutive Sentences [155] The decision whether to impose a sentence concurrent with another sentence or consecutive to it is guided by the principle that offenders must be punished for the crimes they commit. The general rule is that offences that arise from the same event or offences that form part of a single criminal adventure should be sentenced concurrently, while offences that are distinct in time and place should be sentenced consecutively (see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 136; R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368, at pp. 415-16). [156] From the reasons of both the sentencing judge and the Court of Appeal in the present matter, it is clear that both the sexual interference and the extortion were committed in the same transaction and it was therefore appropriate to impose concurrent sentences. --- ##### (b) The Principle of Totality [157] The principle of totality requires any court that sentences an offender to consecutive sentences to ensure that the total sentence does not exceed the overall culpability of the offender (see R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 42; Criminal Code, s. 718.2(c)). Where sentences are concurrent, the totality principle operates differently: it requires that the longest single sentence imposed reflect the overall culpability of the offender for all the offences. [158] If the sentences here had been imposed consecutively, as arguably they should have been, then it would have been necessary to apply the totality principle to reduce the total sentence. Since the sentences were concurrent, the totality principle does not require a specific adjustment. However, even when imposing concurrent sentences, the sentencing judge must have regard to the combined effect of the sentences and must ensure that the total sentence reflects the overall culpability of the offender for all the offences. --- ### D. Application #### (1) No Error in Principle That Affected the Sentence ##### (a) Starting Point [159] The Court of Appeal based its intervention on an error in principle that Judge Stewart did not make. LeMaistre J.A. characterized the sentencing judge's reasons as demonstrating that "he relied upon an aggravating factor that he had found did not exist" by employing the Sidwell starting point. However, this is not an accurate characterization of the sentencing judge's reasons. [160] Judge Stewart's reasons make clear his line of analysis. He specified that he found that the "nature" of the case, involving a sexual assault of a particularly young child by a stranger, warranted the use of a higher starting point. He acknowledged that Friesen did not stand in a position of trust but determined that the four-to-five-year starting point was still appropriate because of the overall aggravating circumstances of the case. This was an exercise of sentencing discretion, not an error in principle. [161] Judge Stewart's reasoned choice to employ a higher starting point than the Court of Appeal preferred does not constitute an error in principle. As we have explained above, sentencing ranges and starting points are guidelines, not hard and fast rules. A sentencing judge is entitled to depart from any starting point if the circumstances of the case warrant it. That is precisely what Judge Stewart did here. [162] This case exemplifies the danger of treating starting points as binding laws. Judge Stewart applied the guidance from Sidwell in a way that gave effect to the principles of sentencing, in light of the circumstances of the case, and his decision should be accorded deference. Rather than focusing on whether the sentencing judge chose the "right" starting point, the Court of Appeal should have focused on whether the sentence was fit. --- ##### (b) No Double Counting [163] We would reject Friesen's alternative submission advanced in oral argument that Judge Stewart double counted the extortion when sentencing for the sexual interference. Judge Stewart identified Friesen's "decision to accompany sexual violence with a form of extortion" as an aggravating factor within the context of the sexual interference offence. This was not double counting. The extortion was an aggravating factor relevant to the moral blameworthiness of Friesen's conduct when he was committing the sexual interference. The subsequent concurrent sentence for attempted extortion separately addressed the criminal liability for the extortion as an independent offence. --- ##### (c) Guilty Plea [164] We are unpersuaded by Friesen's argument that appellate intervention was justified because Judge Stewart did not explicitly identify the guilty plea as a mitigating factor in his reasons. Judge Stewart acknowledged that Friesen's "youth, lack of a prior record, and difficult and traumatic upbringing" were important mitigating factors. We are satisfied that this acknowledgment was sufficient; it is not necessary for a sentencing judge to specifically identify every mitigating factor so long as the reasons as a whole show that the judge had regard to all the relevant factors. There is no indication in the reasons that Judge Stewart failed to give appropriate weight to the guilty plea. --- ##### (d) Expression of Remorse [165] Finally, we do not agree with Friesen's argument that appellate intervention is justified because Judge Stewart did not explicitly refer to Friesen's expression of remorse. Judge Stewart acknowledged Friesen's difficult upbringing and the mitigating factors that flowed from it. He was not required to catalogue every mitigating factor in his reasons. We are satisfied that his reasons as a whole demonstrate that he had proper regard to the mitigating factors in this case. --- #### (2) Sentence Not Demonstrably Unfit [166] Nor was the sentence demonstrably unfit. While the Court of Appeal took the view that the error in principle was sufficient to justify its intervention, we have held that there was no error in principle. The question therefore becomes whether the sentence was demonstrably unfit. In our view, it was not. [167] The sentence imposed here is slightly lower than the six-and-one-half year global sentence that Moldaver J.A. (as he then was) approved in *Woodward*, a case that we have approved. In Woodward, the offender was convicted of four counts of sexual interference and four counts of making child pornography involving a single victim over a period of approximately one year. [168] If anything, the circumstances of this case are more aggravating than those in Woodward. While there were some similarities, the sheer violence that Friesen employed against the victim, the very young age of the victim, and the involvement of the child's mother all make the circumstances of this case particularly aggravating. The sentence of six years imposed here was thus on the lenient end of the spectrum of fit sentences for an offence of this nature. [169] Parliament's increase of the maximum sentences for sexual offences against children confirms our view that the six-year sentence imposed here is not demonstrably unfit. Parliament increased the maximum sentence for sexual interference to 14 years by enacting the Tougher Penalties for Child Predators Act. This increase signals Parliament's view that sentences for sexual interference must increase. A sentence of six years for the particularly egregious circumstances of this case is on the low end of what Parliament had in mind. [170] We would also commend Judge Stewart for the careful approach he took to many of the significant factors that we have outlined in these reasons. In particular, Judge Stewart properly recognized the immediate and long-term harm to the victim that Friesen's conduct caused; appreciated the incredibly aggravating nature of the victim's young age; and properly emphasized the sentencing objective of separating Friesen from society because of the high risk that Friesen posed to children. [171] Nor does the fact that Judge Stewart found that Friesen did not stand in a position of trust make the sentence unfit. While an abuse of a position of trust is an aggravating factor, the absence of a trust relationship does not make a sentence fit simply because the sentence would have been appropriate had there been a trust relationship. The fitness of the sentence depends on all of the circumstances of the case, not simply on whether the offender stood in a position of trust. [172] Regardless of whether s. 718.2(a)(iii) applies, we find that Friesen's decision to exploit the mother's relationship of trust with the child was an aggravating factor, even though Friesen himself did not stand in a position of trust to the child. Friesen knowingly decided to use the mother as an instrument to access the child for the purpose of sexual violence. In doing so, he exploited the mother's relationship of trust with the child and made himself complicit in the mother's breach of that trust. [173] Even if the mother had not stood in a position of trust, the fact that Friesen coordinated the sexual violence against the victim with the mother would be an aggravating factor. By directing the mother to harm her own child, Friesen demonstrated a particularly callous disregard for both the child and the mother. He placed the mother in an impossible position, forcing her to participate in the violation of her own child. [174] We share the Court of Appeal's view that Judge Stewart properly weighed the mitigating factors. Friesen is a youthful offender with no prior criminal record who entered a guilty plea and expressed remorse. He had a difficult and traumatic upbringing that included neglect and physical and sexual violence. These are all significant mitigating factors that Judge Stewart properly took into account. However, these mitigating factors are not sufficient to make the six-year sentence unfit, given the particularly egregious circumstances of the offence and the high risk that Friesen poses to children. [175] Finally, we would add that the six-year sentence in this case should not be considered as being reserved for only the most exceptional cases of sexual interference. Rather, it is a sentence at the low end of the range that properly reflects the contemporary understanding of the gravity of sexual interference with a very young child in the particularly aggravating circumstances of this case. --- #### (3) Additional Aggravating Factors [176] We wish to comment, as well, on three factors that we consider aggravating, but which were not fully considered by the sentencing judge or the Court of Appeal. [177] First, neither Judge Stewart nor the Court of Appeal mentioned the potential or actual harm to the mother from the extortion. Friesen threatened the mother that he would disclose her supposed sexual abuse of her one-year-old son unless she brought the child back. This threat put the mother in a deeply traumatizing position. Even if the mother was not in fact guilty of the alleged abuse, the threat of disclosure would have been horrifying and could have caused significant emotional harm. Courts should recognize that extortion that involves threats to harm or expose family members can compound the harm to the victim of a sexual offence. [178] Second, neither Judge Stewart nor the Court of Appeal mentioned the additional potential harm to both the mother and child from the fact that the mother's participation in the sexual violence was audio-recorded on the mother's cellphone. The transcript of the recording was admitted at the sentencing hearing. The existence of a recording of the sexual violence raises the possibility that the recording could be shared or disclosed in the future, which could cause ongoing harm to both the mother and child. As this Court recognized in S. (J.) and Sharpe, the distribution of recordings of sexual violence against a child repeats the original sexual violence. Courts should consider the potential for harm from the existence of any recording of the sexual violence. > The assaults occurred when the young girl was helplessly sleeping, in circumstances where she could not have feared violation. The result of such an assault on a typical victim would likely have been shame, embarrassment, unresolved anger, a reduced ability to trust others and fear that even in intimate relationships one could not be safe (R. v. Woodward, 2011 ONCA 610, at para. 63). [179] Moreover, neither Judge Stewart nor the Court of Appeal mentioned that the fact that Friesen threatened the mother that he intended to return to "fuck" and "rape" the child is an aggravating factor, even though he did not follow through on this threat. The threat demonstrated Friesen's intent to continue to commit sexual violence against the child and his callous disregard for the child's wellbeing. It also exacerbated the harm to the mother by making clear that Friesen intended to continue the sexual violence. [180] Finally, we wish to comment briefly on the statement by Friesen's former girlfriend to the author of the pre-sentence report that she had once observed Friesen engage in sexual activity with a child under 12. This allegation was not tested in the sentencing proceedings and the sentencing judge did not rely on it as an aggravating factor. We make no finding on the truth of this allegation. However, we note that an unproven allegation of this nature would be appropriate for a sentencing judge to consider if it were established on a balance of probabilities at the sentencing hearing: see R. v. Gardiner, [1982] 2 S.C.R. 368. --- #### (4) Lack of Clarity Regarding Concurrent vs. Consecutive Sentences [181] In his initial reasons, Judge Stewart imposed a single sentence without distinguishing between the sexual interference and attempted extortion convictions. After concerns were raised about this ambiguity, he clarified that the sentences were concurrent. We accept the sentencing judge's clarification. [182] While the principles underlying concurrent and consecutive sentences and the totality principle warrant further articulation in an appropriate case, we do not think that the lack of clarity in the initial reasons constitutes an error in principle that affected the sentence. The sentence as clarified — six years concurrent for each offence — was the appropriate sentence. --- ## VI. Disposition [183] For the foregoing reasons, we would allow the appeal and restore the sentence Judge Stewart imposed for the sexual interference conviction — six years' imprisonment — to be served concurrently with the sentence for attempted extortion. Appeal allowed. --- ## Solicitors Solicitor for the appellant: Attorney General of Manitoba, Winnipeg. Solicitors for the respondent: Bueti Wasyliw Wiebe, Winnipeg. Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto. Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Vancouver. Solicitor for the intervener the Attorney General of Alberta: Attorney General of Alberta, Edmonton. Solicitors for the intervener the Criminal Trial Lawyers' Association: Pringle Chivers Sparks Teskey, Vancouver. Solicitor for the intervener the Legal Aid Society of Alberta: Legal Aid Alberta, Edmonton. --- ## Appendix — Increased Maximum Sentences for Sexual Offences against Children under the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23 | Offence | Criminal Code Section | On Summary Conviction — Previous Maximum Sentence | On Summary Conviction — New Maximum Sentence | On Indictment — Previous Maximum Sentence | On Indictment — New Maximum Sentence | |---------|------------------------|----------------------------------------------------|----------------------------------------------|------------------------------------------|--------------------------------------| | Sexual interference | 151 | 18 months | 2 years less a day | 10 years | 14 years | | Invitation to sexual touching | 152 | 18 months | 2 years less a day | 10 years | 14 years | | Sexual exploitation | 153 | 18 months | 2 years less a day | 10 years | 14 years | | Bestiality in presence of or by child | 160(3) | N/A ͣ | N/A ͣ | 10 years | 14 years | | Order of prohibition | 161 | 6 months | 18 months | 2 years | 4 years | | Making child pornography | 163.1(2) | N/A ͣ | N/A ͣ | 10 years | 14 years | | Distribution of child pornography | 163.1(3) | N/A ͣ | N/A ͣ | 10 years | 14 years | | Possession of child pornography | 163.1(4) | 18 months | 2 years less a day | 5 years | 10 years | | Accessing child pornography | 163.1(4.1) | 18 months | 2 years less a day | 5 years | 10 years | | Parent or guardian procuring sexual activity | 170 | N/A ͣ | N/A ͣ | 10 years | 14 years | | Householder permitting prohibited sexual activity | 171 | N/A ͣ | N/A ͣ | 5 years | 14 years | | Making sexually explicit material available to child | 171.1 | 6 months | 2 years less a day | 2 years | 14 years | | Luring a child | 172.1 | 18 months | 2 years less a day | 10 years | 14 years | | Agreement or arrangement to commit a sexual offence against a child | 172.2 | 18 months | 2 years less a day | 10 years | 14 years | | Prostitution of person under 18 years of age* | 212(4) | N/A ͣ | N/A ͣ | 5 years | 10 years | | Sexual assault (victim under 16 years of age) | 271 | 18 months | 2 years less a day | 10 years | 14 years | | Sexual assault with a weapon, threats to a third party or causing bodily harm (victim under 16 years of age) | 272 | N/A ͣ | N/A ͣ | 14 years | Life imprisonment | Notes: a. "N/A" means one of the following: (1) The statute did not modify the maximum sentence for the offence when the Crown proceeds summarily: bestiality in presence of person under 16 years of age (s. 160(3)); or, (2) The offence in question can only be prosecuted by indictment: making child pornography (s. 163.1(2)), distribution of child pornography (s. 163.1(3)), parent or guardian procuring sexual activity (s. 170), householder permitting prohibited sexual activity (s. 171). * Parliament has repealed the offence of prostitution of person under 18 years of age (s. 212(4)): see the Protection of Communities and Exploited Persons Act, S.C. 2014, c. 25, s. 13. --- [^1]: For the purposes of these reasons, the terms "child" and "children" mean persons under the age of 18. References to "boys""girls""young women""young people""youth""teenagers", and "adolescents" are to persons under the age of 18 unless otherwise specified. [^2]: In addition to child luring, other sexual offences against children described in the Criminal Code include the following: bestiality in presence of or by child (s. 160(3)); making child pornography (s. 163.1(2)); distribution of child pornography (s. 163.1(3)); possession of child pornography (s. 163.1(4)); accessing child pornography (s. 163.1(4.1)); parent or guardian procuring sexual activity (s. 170); householder permitting prohibited sexual activity (s. 171); making sexually explicit material available to child (s. 171.1); agreement or arrangement — sexual offence against child (s. 172.2); exposure (s. 173(2)); trafficking of a person under the age of eighteen years (s. 279.011(1)); receiving a material benefit — trafficking of person under 18 (s. 279.02(2)); withholding or destroying documents — trafficking of person under 18 (s. 279.03(2)); abduction of person under fourteen (s. 280(1)); abduction of person under sixteen (s. 281); obtaining sexual services from person under 18 (s. 286.1(2)); receiving a material benefit from sexual services provided by person under 18 (s. 286.2(2)); and procuring — person under 18 (s. 286.3(2)). In addition to child luring, the child luring provision also applies to various other sexual offences. [^3]: Specifically, the following offences involve human trafficking or child abduction: trafficking of a person under the age of eighteen years (s. 279.011(1)); receiving a material benefit — trafficking of person under 18 (s. 279.02(2)); withholding or destroying documents — trafficking of person under 18 (s. 279.03(2)); abduction of person under fourteen (s. 280(1)); abduction of person under sixteen (s. 281).