R. v. Friesen

R. v. Friesen
Collection
Supreme Court Judgments
Date
2020-04-02
Neutral citation
2020 SCC 9
Report
[2020] 1 SCR 424
Case number
38300
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
Manitoba
Subjects
Criminal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424
Appeal Heard and Judgment Rendered: October 16, 2019 Reasons for Judgment: April 2, 2020 Docket: 38300
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
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Joint Reasons for Judgment: (paras. 1 to 183)
Wagner C.J. and Rowe J. (Abella, Moldaver, Karakatsanis, Côté, Brown, Martin and Kasirer JJ. concurring)
Her Majesty The Queen Appellant
v.
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
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
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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.
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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
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
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 alcoho