Supreme Court

Supreme Court of Nova Scotia

Citation: R v B.J.R., 2021 NSSC 26

Date: 20210127

Docket: CRBWT No.  484660

Registry: Bridgewater

Between:

HER MAJESTY THE QUEEN

v.

B.J.R.

 

Judge:	The Honourable Justice Pierre Muise
Heard:	January 11, 2021 in Bridgewater, Nova Scotia
Written Decision:	January 27, 2021 (Rendered Orally January 11, 2021)
Summary:	Mr. R. sexually assaulted his 16-year old daughter, on one occasion, including by removing her shorts and performing cunnilingus. He pled guilty. He had no prior record. He expressed remorse; but took few steps towards rehabilitation.
Issue:	What is a proper sentence?
Result:	A sentence of three years’ imprisonment, plus ancillary orders, was imposed. The considerations included the directions in Friesen.

 

SUPREME COURT OF Nova Scotia

Citation: R. v B.J.R., 2021 NSSC 26

Date: 20210127

Docket: CRBWT  No.  484660

Registry: Bridgewater

Between:

Her Majesty the Queen

v.

B.J.R.

 

 

Judge:	The Honourable Justice Pierre Muise
Heard:	January 11, 2021, in Bridgewater, Nova Scotia
Counsel:	Sharon Goodwin, for the Crown Jonathan Cuming, for B.J.R.

 

 

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

          (a) any of the following offences:

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

          (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

By the Court (Rendered Orally January 11, 2021):

[1]             B.J.R. (“Mr. R) pled guilty to having, on August 9, 2017, committed a sexual assault on S.R., contrary to section 271 of the Criminal Code.

[2]             He is being sentenced in relation to that offence.

[3]             An accompanying charge under s. 153, arising from the same incident, is set for disposition following sentencing.

[4]             The Crown proceeded indictably on the s. 271, and the victim had turned 16 years of age. Therefore, the sexual assault offence carries a maximum penalty of 10 years’ imprisonment.

[5]             There is no minimum penalty.

Circumstances of Offence

[6]             S.R. is Mr. R.’s adopted daughter, and the biological daughter of his wife. He has been a father figure to her since she was a small child.

[7]             On the date of the offence, August 9, 2017, she was 16 years old and turned 17 on November 11 of that year.

[8]             He was 38.

[9]             They were camping at a campground. S.R.'s mother left to pick up S.R.’s  …… siblings ……. S.R. and Mr. R. remained at the campground.

[10]         Mr. R. had been drinking alcohol all day and into the night. S.R. had had a few coolers.

[11]         Around 9:00 to 9:30 pm, S.R. went into the trailer. Mr. R. followed her.

[12]         He began to say inappropriate things about seeing her naked and asked to give her a back massage, suggesting she take off her top.

[13]         Those comments scared her, and she decided to go to bed. However, Mr. R. followed her into her bed and lay down with her. He started rubbing her legs, thighs, and chest, and then put his hands between her legs.

[14]         She asked him, three times, "Dad, what are you doing?"

[15]         He took her shorts off, opened her legs, and began performing cunnilingus on her. She was crying. After about a minute, he asked if she wanted him to stop. She said that she did want him to stop.

[16]         He stopped, got off her, sat in a chair and broke down, asking himself what he had just done.

Sentencing Recommendations

[17]         The Crown is seeking the following:

          - 2 to 4 years’ imprisonment;

  - a SOIRA order for 20 years (s. 490.013(1)(b));

  - a DNA order (primary designated offence – s. 487.04(a)(xi.3));        

  - a s. 109 Firearms Prohibition Order for life (mandatory 10 years); and,

- a s. 743.21 endorsement of warrant of committal to provide for no contact     or communication with victim.

[18]         The Crown highlights and relies upon the principles and guidelines for sentencings involving sexual offences against children laid out by the Supreme Court of Canada in R v Friesen, 2020 SCC 9. I will discuss the principles and guidelines which are relevant to the case at hand later.

[19]         The Defence initially recommended an 18 to 22 month conditional sentence order, but, noting the illegality of a conditional sentence order with respect to sexual assaults, indicated that, instead, it was seeking a 3 year period of probation with conditions to make it comparable to a conditional sentence order with house arrest.

[20]         They have no difficulty with the 20 year SOIRA Order and any applicable mandatory orders.

[21]         There was some discussion regarding the length of the s.109 Firearms Prohibition. The Defence disagrees with the Crown that it ought to be for life and suggests that the 10 year minimum is sufficient.

[22]         The Defence acknowledges that Friesen may require an upward adjustment of sentences imposed in similar cases in the past. However, it notes that 18 to 22 months of house arrest is significantly longer than the period imposed in R v S.F.D., 2019 Carswell Nfld 15 (a 2019 decision from the Newfoundland Provincial Court).

[23]         Determining appropriate range of sentence requires the court to consider the objectives and principles of sentencing.

[24]         Friesen addressed them in detail as they relate to sexual offences against children, with particular emphasis on denunciation, deterrence, proportionality, and how parity relates to proportionality. Prior to applying the objectives and principles of sentencing to the case at hand, I will outline the relevant points from Friesen.

R. v. Friesen

[25]           The main themes in Friesen are summarized at paragraph 5 as follows:

 …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.

[26]         Those themes are expanded upon in Friesen as follows:

-         Precedent cases provide the body of sentences that judges use to determine what is a proportionate sentence. When done in a consistent manner, it satisfies the principle of parity: paras 32 and 33.

-         “Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code”: para 42.

-         “[S]entencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause”: para 50.

-         “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”: para 51.

-         “This … 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 …  ‘may often be more pervasive and permanent in its effect than any physical harm’”: para 56.

-         At paragraphs 57 and 58, the Court noted: various forms of emotional and psychological harm resulting from such offences; and, that they “are particularly pronounced for children”.

-         At paragraphs 60 and 61, it discussed the harm caused in the form of damage to the child’s relationship with their families and caregivers.

(The victim impact statement filed in this case, and read in this case, describes such emotional, psychological and relationship damage.)

-         Paragraphs 62 to 64 describe the forms of harm that families, communities and society suffer. They include, among others:

-             Destruction of trust;

-             Feelings of guilt and powerlessness;

-            The financial and emotional costs of the child’s need to     recover and overcome behavioral challenges;

-             Resulting social problems;

-             Costs of intervention; and,

-             Medical costs.

-         “Sexual violence against children is especially wrongful” because of their vulnerability, and they “are most vulnerable and at risk at home and among those they trust”: paras 65 and 66.

-         “Sexual violence has a disproportionate impact on girls and young women”:  para 68.

-         “[C]ourts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle”: para 75.

-         In assessing the gravity of the offence, courts must “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”: para 76.

-         These must also be considered in determining the offender’s degree of responsibility: para 87.

-         The sexual exploitation of children, because of their vulnerability, and the interference with their sexual and psychological integrity, aggravates the wrongfulness: para 77 and 78.

-         The fact that the victim is a child, and the offenders ought to know of the potential harm, increases their degree of responsibility: paras 88 to 90.

-         Paragraphs 79 to 81 describe several potential forms of harm that can manifest themselves during childhood or only become evident in adulthood. Some can rob the child victim of their youth and innocence. Many result in relationship and trust challenges, fear, mental and psychological health issues, sleep disturbances, and anti-social or self-destructive behavior.

-         At paragraph 84, the following is stated:

… courts must consider the reasonably foreseeable potential harm that flows from sexual violence against children when determining the gravity of the offence. Even if an offender commits a crime that fortunately results in no actual harm, courts must consider the potential for reasonably foreseeable harm when imposing sentence.

-         Then, at paragraph 85, it is noted, however, that actual harm “is a key determinant of the gravity of the offence.”

-         Parliament has mandated that sentences for sexual offences against children must increase by: increasing maximum sentences where the child is under 16; and, requiring courts to give primary consideration to denunciation and deterrence where the victim is under 18: paras 95 to 103.

[27]         In the case at hand, the victim was 16, thus the increased maximum does not apply. However, she was under 18, and, Friesen, at paragraph 105, confirmed that Parliament’s prioritization of denunciation and deterrence for sexual offences against children was reflective of their wrongfulness and the harm they can cause.  Therefore, the direction to increase sentences applies in the case at hand. As noted in R v W.G.L., 2020 NSSC 232, at paragraphs 19 and 20, based on paragraphs 108 to 110 of Friesen, the deepening of the courts’ understanding of the wrongfulness and harmfulness of these offences makes it such that the “court can conclude that earlier precedents did not adequately reflect or recognize both the gravity and harmfulness of sexual offences to children”.

[28]         Friesen, at para 107, stated:

We are determined 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. To do so, we wish to provide guidance to courts on three specific points:

(1)               Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence;

(2)               Sexual offences against children should generally be punished more severely than sexual offences against adults; and,

(3)               Sexual interference with a child should not be treated as less serious than sexual assault of a child.

[29]         At paragraph 114, it stated:

…it is incumbent on us to provide an overall message that is clear … . That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim.

[30]         Paragraph 116 notes that Parliament has signaled that sexual offences against children are to be punished more severely than those against adults, and has done so by way of the same provisions noted in relation to increasing sentences, plus those making abuse of persons under 18, and abusing a position of trust or authority, aggravating factors.

[31]         At paragraphs 121 to 147, the Court discussed significant factors to consider in determining a fit sentence. It went on, starting at paragraph 148, to discuss victim participation. However, that is not applicable in the case at hand. The relevant factors include the following:

1.                  The greater the risk of re-offence, the greater the emphasis that should be placed on the sentencing objective of separating the offender from society. Though rehabilitation is to be encouraged, because it offers long-term protection, it can occur through programming within the prison, while ensuring short-term protection.

2.                 An offender who abuses a position of trust should receive a lengthier sentence than one who is a stranger to the child because the breach of trust is likely to increase the harm and thus the gravity of the offence, and it is aggravating because it increases the offender’s degree of responsibility.

3.                 Significantly higher sentences should be imposed on offenders who commit sexual violence against children on multiple occasions and for longer periods of time.

4.                 The age of the victim is a significant aggravating factor because dependency and vulnerability are more pronounced in younger children, which impacts both the gravity of the offence and the degree of responsibility.

5.                 There are several dangers in defining a sentencing range based on the specific type of sexual activity at issue. Significant harm can flow from all types of sexual acts. Friesen strongly cautions courts “against downgrading the wrongfulness of the offence or the harm to the victim where the sexually violent conduct does not involve penetration, fellatio, or cunnilingus, but instead touching or masturbation”. There is no hierarchy of physical acts. However, an elevated degree of physical interference is still an aggravating factor.

Purpose and Principles of Sentencing

[32]         The purpose, objectives and principles of sentencing in ss. 718 to 718.2 CC are to be considered.

[33]         Ss. 718 and 718.01 provide:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

THE OBJECTIVES OF SENTENCING

[34]         The objectives of denouncing unlawful conduct, and, deterring the offender and other persons from committing offences, are of paramount importance when dealing with sexual offences, especially when committed against a person under the age of 18. In the case at hand, the victim was only 16. Therefore, I am statutorily directed to give primary consideration to the objectives of denunciation and deterrence.

[35]         Another objective is, where necessary, separating the offender from society. Friesen notes that “mid-single digit penitentiary terms for sexual offences against children are normal” and “substantial sentences can be imposed where there was only a single instance of sexual violence”. In the circumstances of the case at hand, proportionality, which I will discuss later, could easily require a sentence well into the penitentiary range, for the one atrocious incident, to give effect to proportionality, parity and the requirement that primary consideration be given to denunciation and deterrence.

[36]         A further objective is to assist in rehabilitating the offender. Mr. R. has accepted responsibility and expressed remorse. The fact that he, himself, following the offence, accompanied by his wife, informed the local child protection agency that S.R. was saying that he had sexually assaulted her, demonstrates that he had a willingness, early on, to address the matter. That reporting is what led to the charges. However, the following points raise concerns regarding rehabilitation:

-         In the Pre-Sentence Report it is noted that Mr. R. “has taken some steps to address his current issues with alcohol abuse and his personal struggles with the consequences of his actions, however, he did not provide the writer with an indication that he has adequately determined a reasonable and in-depth rationale for the offence against the victim and how he might prevent this type of behaviour from happening again.

-         The Pre-Sentence Report also indicates that he only attended four monthly counselling sessions through his employment assistance program, and that they were "to develop a coping strategy for dealing with the stress and anxiety he experienced as a result of being charged with the offence before the Court and the repercussions that followed, those related to the breakup of his family and the alienation he experienced from them. They did not directly focus on therapy surrounding any sexual issues.”

-         The Pre-Sentence Report further stated:

“The writer, therefore, suggested to him that he contact a local counselling agency, Community Justice Initiatives, that specializes in dealing with the victims and perpetrators of cases like the one before the Court. The subject, as of the completion of this report, states he believes this would be a good idea, but had yet to contact his agency because he has been working long hours in other parts of the province and was therefore unable to connect with this agency.”

-         Similarly, he decided not to attend for the forensic sexual behaviour assessment that was requested, out of concern for missing work, which would be about 3 weeks’ work because of the Covid-19 self-isolation requirements in place. I note that he works in Ontario. That assessment would have assisted in determining prospects of rehabilitation and available means to pursue rehabilitation.

[37]         These points suggest a lack of interest in taking steps towards rehabilitation (even though he says he is looking forward to counselling again), thus diminishing the prospects of a successful rehabilitation.

[38]         The Pre-Sentence Report notes the following in relation to alcohol consumption. His parents, his wife and the victim all agree that his use of alcohol is an addiction and is abusive. Despite that, and despite alcohol being a significant factor in the commission of the offence, he continues to consume alcohol, though he indicates his consumption is greatly reduced and he no longer drinks to the point of intoxication.

[39]         The continued consumption of alcohol, even after it played a significant role in the commission of a very serious offence, creates a continued risk of consuming to excess and committing a further similar offence in an intoxicated state.

[40]         Other objectives are: to provide for reparations for harm done to victims and the community; and, promoting a sense of responsibility in the offender, and acknowledging the harm done to the community. I will deal with these two objectives together.

[41]         It is promising that Mr. R. has stated that he wants to spend the rest of his life making up for what he has done. It may be that it is impossible in relation to the victim, and the family. But obviously, if so inclined, he might be able to give talks to the general public and perhaps make other people think and avoid putting themselves in the position that he put himself in. A position which, I suspect, if he could go back and remove, he certainly would.

[42]         Unfortunately, no sentence imposed will provide true and full reparation for the inevitable harm caused to the victim by having her sexual integrity violated by a person she should have been able to trust to protect her from such atrocities.

[43]         I will relate the actual harm expressed in the victim impact statement shortly. I also take into consideration the potential for additional harm that is not yet apparent to the victim, as expressed in Friesen.

[44]         In the meantime, I note that a sentence involving imprisonment can serve to acknowledge the level of harm done, not only to the victim herself, but also to the community at large, and promote a corresponding sense of responsibility in the offender.

[45]         He has accepted responsibility. However, as indicated, he has not pursued a sexual offender assessment, nor rehabilitative counselling, and he still consumes alcohol despite the part that it played in this horrific offence. That indicates that he, likely, does not fully appreciate and acknowledge the level of harm done to the victim and the community. Having said that, it is indicated he has been doing a lot of reading to try to understand why he did what he did and is looking forward to availing himself of whatever counselling and programming may arise from this sentencing process. He also stated that he does understand the impact that his actions have had on S.R., the victim, and on the rest of her family. He expresses remorse and that he feels horrible about it. It is obvious that he does. It does indicate he has some appreciation for the harm that he has caused, just not yet a full appreciation.

[46]         As indicated in Friesen, in addition to the detrimental impact upon the victim, these types of offenses also have a detrimental impact on the victim’s family, the community at large, and society in general.

[47]         The common impact they can have on an individual victim, such as depression, anxiety, anger, low self-esteem, and other mental health difficulties, can flow over to the community at large in the way of, among other things, social issues requiring intervention, diminished productivity and higher health care costs.

[48]         It leads to distrust and fear, for the victim and the community at large, limiting our sense of security and freedom.

[49]         In the case at hand, the Pre-Sentence Report notes that the offence has had a significant impact on the victim's family. She has …… siblings, ………………….. Her mother and Mr. R. are their natural parents. Those siblings no longer have contact with Mr. R. In addition,………………………………………………………...

[50]         The Victim Impact Statement, that was filed and read, is thorough and insightful. It demonstrates that many of the potential harms referred to in Friesen have already materialized as actual harms.

[51]         It notes the following:

S.R. indicated that what happened on August 9, 2017, completely changed who she was as a person. It changed the way she looked at the world, other people and how she viewed herself. None of that change has been for the better. She finds herself scared of the world, and of the people in it, scared of what might happen to her or the people she cares about. It has stopped her from living her life. It has stopped her from enjoying things that used to make her happy, perhaps because she is depressed, or perhaps because she does not know how to be happy anymore. She has isolated herself from people who just want to help her, and be there for her, because she is afraid that they will hurt and betray her as well, which she does not think she can handle. She is afraid to love people, and to allow herself to be loved. The one man who was supposed to protect her, and love her unconditionally, did not. That messed up her head, and skewed her definition of love. She cannot help but think, as a result of this, that she will only ever be loved for her body, or for the ways she can sexually please a man. She has had therapy sessions, takes anti-depressants, but that is not enough. It is not enough to eradicate the feelings of wanting her life to be over. That is because she fears she will never find happiness. She fears that she will never be truly loved, and that she will never be whole again. She misses being hopeful. She misses having dreams and goals. She misses wanting a future for herself. She misses who she used to be, and would give anything to be that person again. She misses not relying on pills, or serotonin, to keep her going, and she misses not having a good night’s sleep. She is tired of waking up and just for a moment, feeling okay, until the crushing weight of remembering everything that happened to her comes upon her, and her heart breaks again every single morning. She feels the crushing weight of her own reality suffocating her. She has horrible dreams, filled with either what happened on that night, or different variations of assault. The worst dreams are the ones where everyone seems to know what happened, and nobody cares and nobody does anything. That appears to reflect the feeling of helplessness. After 3 years of these constant dreams, it has gotten to the point where she does not want to go to sleep at night, but yet does not want to wake up either. She says there is just pain constantly, no matter what she is doing. There is pain in her head, and chest, pain in her stomach, when she thinks about if for too long and she starts to feel sick at how wrong and disturbing it all is, and that nothing feels right anymore. Her body just feels weaker, more fragile, and breakable. Everything, even little things, are so incredibly overwhelming and stressful. She has lost jobs. She has missed about half of her grade 12 year. She has lost relationships with people that she thought would always be in her life. She has lost her own self-identity. She does not even know who she is anymore. These past few years, she has been just floating through life, just focusing on making it to the next day. She has been surviving, but not living. She does not even remember how to live. She does not know what makes her happy, or feel comforted. She does not know how to make the pain go away, and she is tired of it all. She feels broken, used, and betrayed. But mostly, she feels angry that her life was taken away from her, angry that she did not have a father to dance with at the high school prom, angry that she will not have a father to walk her down the aisle or to cheer her when she graduates, if she graduates. She is angry that this does not only affect her, but everyone around her. Her mother, her siblings, her friends, they all have to deal with this new and damaged person. She does not find that is fair. She sees the only good that came out of this being that he will not be in their lives anymore, and will not be in her life, and will never have the opportunity to do to them what he has done to her. It is that fact alone, that one silver lining, that gets her through the day. She describes him as a monster of a human being, and is glad he will be out of their lives forever.

[52]         It has been about 3 1/2 years since the offence and its impacts are still having a devastating effect upon S.R. It has robbed her of what should have been exciting and joyful teenage years, during which she would have continued her development to adulthood in a healthy and self-fulfilling way.

[53]         By all appearances, those effects can be expected to continue for a significant period of time.

[54]         That is not to say that there is no hope for recovery. As stated at paragraph 59 of Friesen:

In emphasizing the harmfulness of sexual offences against children, we do not intend to stereotype child victims of sexual violence as forever broken. To the contrary, it takes great “strength and courage” to survive sexual violence as a child …. Frequently, child victims make “valiant and repeated efforts to have someone believe their allegations … . Many victims go on to live healthy and meaningful lives with fulfilling and loving relationships. Offenders cannot rob children of their “strength, compassion, love for others and intelligence” and “resolve to take back their lives”.

[55]         S.R. has shown great courage, resolve, strength and maturity in preparing her victim impact statement, and in reading it in open court. It is hoped that those same attributes will help her along the path of healing.

 Other Sentencing Principles

[56]         The following codified sentencing principles also apply:

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

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

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

               ....

               (ii)        evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,           

               ....

               shall be deemed to be aggravating circumstances;

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

….

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

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

Proportionality (s. 718.1)

[57]         Given the circumstances of this offence, its inherent wrongfulness, its devasting actual impacts, and the potential harm that may surface, it is clearly a very grave offence.

[58]         The same points establish a high degree of responsibility in the offender. He had to know that committing such an atrocious act on his own teenage daughter would have a devastating effect on her.

[59]         Not only was there an extreme breach of trust because he was the victim’s father. The victim was at her most vulnerable because she was in their temporary recreational residence with the one person she trusted to protect her the most against such victimization. Instead he crushed her life as she had known it to that point.

[60]         The astronomical wrongfulness of his actions ought to have been clear to him.

[61]         His words immediately following the offence demonstrate he was aware of the magnitude of his actions. He said: “What have I done?”

[62]         There is no evidence establishing a diminished level of capacity on the part of the offender which would show diminished responsibility. 

[63]         Alcohol played a role in the commission of the offence. He was highly intoxicated. He indicates he does not recall what he did. However, his intoxication was self-induced. It does not reduce his moral blameworthiness.

[64]         He acted alone. There is no evidence establishing any other factors related to diminished responsibility. As such, he was solely and fully responsible for this offence.

Aggravating and Mitigating Circumstances in the Case at Hand   

Aggravating Circumstances

          The aggravating circumstances in the case at hand include the following:

-         The offender abused a person under 18, a statutorily mandated aggravating factor under s. 718.2 (ii.1).

-         He abused the highest position of trust, as he sexually assaulted his own daughter in the privacy of the trailer they were camping in.

-         She was a family member which, in itself, is a statutorily recognized aggravating feature under s. 718.2 (ii).

-         The offence had a significant impact on the victim.

-         The victim was vulnerable because her and her family were dependent on Mr. R. for some of the family income, and she had no reason to think he might perpetrate such an act, so she was caught completely off guard by being sexually assaulted by her own father, while in her own bed. As noted in Friesen, she was at her most vulnerable.

-         Sexual offences against persons under 18 make deterrence and denunciation primary considerations.

-         The offence involved forcing the victim’s legs apart, removing her shorts, and performing cunnilingus on her. Those are highly intrusive acts with an elevated level of physical interference, which is an aggravating factor.

Mitigating Circumstances

          The mitigating circumstances in the case at hand include the following:

-         Mr. R. reported to the Department of Community Services that S.R. was saying he sexually assaulted her, which in turn contacted the police. That does demonstrate some level of cooperation with the authorities.

-   Mr. R. entered a guilty plea. However, it was entered on the eve of a jury trial, during a pandemic. As such, the victim had to deal with the emotional and psychological turmoil of, attending a public courthouse during a pandemic, and expecting to have to testify in front of a jury, up to only a few days before trial. Plus, she had already had to go through the turmoil of testifying at the preliminary inquiry. The mitigating effect of the guilty plea is diminished as a result. On the other hand, the guilty plea was entered without a joint recommendation on sentencing, which, as noted at para 70 of R. v. McNutt, 2020 NSSC 219, is “a strong and meaningful mitigating factor” which speaks to “real remorse, the acceptance of responsibility and the desire to save the victims from the harm of testifying”. That has the effect of increasing the mitigating impact, but not as much as if the desire to enter a guilty plea had been expressed at an early stage, as was the case in McNutt.

-  He has expressed remorse.

-  He has written a letter of apology and will be submitting it through his lawyer, and through the Crown, to S.R., the victim, who had indicated to the writer of the Pre-Sentence Report that she would be willing to accept it, though she may not read it immediately upon receiving it, and has indicated that same willingness to the Crown today.

          -   He had no prior record.

         -    He is gainfully employed, in a growing industry, earning good income, and provides about $2,700.00 of financial support to his family each month. He is described as a valued employee and an integral part of the company, very reliable, experienced and highly capable.

        -     He does have the support of his parents.

[65]         Unlike many offenders, he does not have the mitigating effect of a difficult childhood. According to the Pre-Sentence Report, his childhood and upbringing were positive, prosocial and non-abusive.

[66]         Similarly, he does not have the mitigating impact of having been under strict release conditions, and his employer will keep his employment for him even if he is incarcerated, so that is not a collateral effect that comes into play.

[67]         I agree with the Defence submission that continuation of financial support for the family was seen as an important factor in R. v. S.F.D., to avoid exacerbating the already difficult situation the family, which had remained together after the offence, found itself in. However, there is no evidence in the case at hand that the temporary loss of support would leave the victim’s family in a difficult situation. S.R. closed her victim impact statement by emphasizing she wanted Mr. R. out of their lives forever. That appears to override any concerns regarding financial support.

Friesen Factors

[68]         I will also address the relevant factors outlined at paragraphs 121 to 147 of Friesen, for determining an appropriate sentence for a sexual offence against a child, even though there is some overlap with points that I have already made in the course of discussing the objectives and principles of sentencing.

1.                 Mr. R. has not taken any rehabilitative initiative in the community. There is no indication of any intention to do so in the community, except that he said he wanted to go back to counselling which was not counselling directed at the sexual offending specifically. He continues to consume alcohol even though it played a significant role in the commission of the offence. This leaves a significant potential for re-offence. Even though his family has cut ties with him, he may still find himself in a situation where he is consuming alcohol in the presence of a 16 to 18-year-old. This militates in favour of placing greater emphasis on separating the offender from society. Both short-term protection of the community and rehabilitative programming can be accomplished and accessed through a period of imprisonment.

2.                 The extreme breach of trust, which I have already described, should result in a lengthier sentence than if there was no such breach of trust.

3.                 Fortunately, Mr. R. did not have the opportunity to commit further offences against the victim. Therefore, the sentence increase that should follow if the sexual violence had been committed on multiple occasions does not obtain in the case at hand.

4.                 Though still a young person, and vulnerable for the reasons I have described, the victim was less dependent and vulnerable than if she had been a young adolescent or child. Therefore, the aggravating effect of age is not as pronounced as in those circumstances, but more pronounced than if she had been closer to the age of 18.

5.                 As already indicated, the elevated degree of physical interference involved is an aggravating factor. It includes cunnilingus, which has always been considered to be very serious. Therefore, there is little risk of the type of sexual act performed being improperly considered or treated as one less likely to cause harm, or its wrongfulness being downplayed. Friesen warned against that danger, but it is not a danger that exists here. It is clear that significant harm can flow from it, like all types of sexual acts, and indeed, it has caused significant harm.

 

Parity Principle (s. 718.2 (b) )

[69]         A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This principle, of course, recognizes that no two cases are identical.

[70]         Counsel have provided the following comparison cases:

Defence Cases

I will start with the cases presented by the Defence.

R v. S.F.D., 2019 CarswellNfld 15 (P.C.)

-         The offender, who had been drinking, entered the bedroom of his nine-year-old daughter, lay beside her and touched her breasts and vagina directly. It lasted about 10 minutes. It was only reported about 15 years later. The family continued to live together in the meantime with no further incidents. It deeply and negatively affected the victim. The offender was 48, with no criminal record. He had entered a guilty plea, showed remorse, and incarcerating him would cause him to lose his employment, making things even more difficult for the family. The Crown had recommended a sentence of 12 to 14 months’ imprisonment. The court imposed an eight month conditional sentence order, followed by two years' probation.

-         This is a Provincial Court level decision, from another province, which predates Friesen. Therefore, it must be viewed with caution and carries little weight. Even the range of sentence recommended by the Crown was below the reasonable range.

R. v. Aaron Byron Cumberland, is a Nova Scotia Supreme Court decision rendered at Kentville, on December 1, 2020. It is unreported and no transcript was provided. The facts are gleaned from the submissions of Defence counsel and his responses to some of the Court’s questions.

-         In that case, it appears Mr. Cumberland was convicted, by a jury, on the 3rd jury trial, of luring, making sexually explicit material available to a child, and invitation to sexual touching. They all carried a maximum term of imprisonment of 14 years and mandatory minimum sentences. He was sentenced to 18 months’ imprisonment, time served, even though the sentencing judge extensively reviewed Friesen.

-         In that case, the offender had been the owner of the summer tennis camp the victim had attended the previous summer. The victim was seeking assistance with a resume for a job hunt, including a job as a tennis instructor. However, he was vulnerable because he was mentally challenged and only 15 years of age. The offender took advantage of that vulnerability and engaged in electronic communication to lure him into meeting for sexual purposes.

-         Any finding of abuse of trust the Court may have made would be minimal compared to the case at hand.

-         There was no meeting, as the victim's parents discovered the communications, and intervened, continuing conversations while pretending to be the victim. Thus, there was no physical contact.

-         Friesen notes that the principles it sets out apply to offences not involving touching, such as invitation to sexual touching and luring.  Those can cause significant harm, just like offences involving contact. However, in Cumberland, there was no evidence of actual harm.

-         Also, pursuant to the Supreme Court of Canada decision, in R. v. Anthony-Cook, 2016 SCC 43, the sentencing judge was directed to accept the joint recommendation unless it “would bring the administration of justice into disrepute or would otherwise be contrary to the public interest”. Arguably, the 18 months could be seen as bringing the administration of justice into dispute or being contrary to the public interest. However, the sentencing judge had to bear in mind that “even where the proposed sentence may appear to the judge to be outside an acceptable range, the judge ought to give it serious consideration, bearing in mind that even with all appropriate disclosure to the Court, there are practical constraints on disclosure of important and legitimate factors which may have influenced the joint recommendation”. That was noted at para 32 of R. v. MacIvor, 2003 NSCA 60. As such, the sentencing judge could easily have been in a position where he had to accept the joint recommendation.

-         The Judge’s comments to the offender that he was very lucky that the Crown was only asking for 18 months because, if it had asked for a higher sentence, he would have imposed it, does indicate that the judge felt constrained by the joint recommendation.

-         Therefore, the Cumberland case does not support the imposition of a sentence in the case at hand anywhere near as low as 18 months.

Crown Cases

I turn now to the cases presented by the Crown.

R. v. Fisher, 2020 NSSC 325

-         A 29-year-old church pastor, abusing his position, engaged in sexual activity with a 17-year-old church member, over 5 months, until she turned 18. The church was the centre of her life. The offences included kissing, touching, digital penetration, oral sex and sexual intercourse. The pastor was sentenced following conviction. The Court imposed a 27-month sentence, and would have imposed a three-year sentence, but for the mitigating features. They included: the lack of a criminal record; that he was a contributing member of society who volunteered extensively; he had significant support from family and friends; he led a largely prosocial life; he had undergone counselling and indicated a willingness to attend further counselling; he had furthered his education since being terminated from his position at the church; he had worked hard since leaving Jamaica to attain considerable educational success; and, he had no substance issues and substance was not a factor in the offence. There was also a Cultural Impact Assessment prepared which noted the impacts of race and culture on the offender, including: historical and contemporary systemic racism; poverty as it relates to cultural expectations and social/emotional development; impacts of cultural codes on mental wellness; the over-representation of African Canadians in prison; and, services and resources that should be made available to the offender to support rehabilitation and reintegration.

-         There were many more incidents in that case than in the case at hand. However, the level of breach of trust was significantly less and the offender's efforts towards rehabilitation were considerably greater, than in the case at hand. In addition, Mr. R. has not experienced the same impacts of race and culture. Therefore, comparing the circumstances in their totality, would support imposing a higher sentence on Mr. R.

R. v. W.G.L., 2020 NSSC 323

-         The court imposed a sentence of 3 1/2 years’ imprisonment for sexual assault by a stepfather, against a 10 to 12-year-old. It involved digital penetration, grinding her pelvic area, and tongue kissing. It occurred more than 10, but less than 50, times.

-         There was no victim impact statement, thus no evidence of actual harm. The offence had been committed 20 years prior. The offender had no criminal record. There was no indication of remorse. He had been found guilty following trial. I pause to note that, obviously, the passage of time can have a mitigating effect. I say that because of this case, and other cases presented, in which there was a lengthy delay, in fact decades of delay, in bringing the matter forward.

-         Comparing the totality of circumstances in that case, with those in the case at hand, supports a finding that the sentence in the case at hand ought to be lower, to give effect to proportionality and parity.

R. v. D.C., 2020 NLSC 78

-         The offender was found guilty of having committed 10 to 15 sexual assaults against his stepdaughter when she was between the ages of five and 11. They ranged from rubbing her vagina to full intercourse. He had a prior conviction for Internet luring. He was sentenced to seven years’ imprisonment.

-         In comparison, the circumstances of the case at hand warrant a much lower sentence, particularly considering, in D.C.: the age of the victim; the number of incidents; the lack of a guilty plea; and the prior record, factors which do not obtain in the case at hand.

R. v. D.F.N., 2020 BCPC 119

-         The 78-year-old offender was convicted of performing fellatio four times on a 14 to 15-year-old victim. He had a record which included sexual assault and sexual interference. There was no breach of trust. However, the victim was indigenous, which was an aggravating factor. He was sentenced to 4 years’ incarceration.

-         The case is a Provincial Court level decision from a different jurisdiction. Therefore, it carries less weight. However, to the extent of the weight that it does carry, considering the totality of factors, despite the lack of breach of trust, a comparison with the circumstances of the case at hand supports a lower sentence in the case at hand.

R. v. McNutt, 2020 NSSC 219

-         This case was included with the comparison cases. However, it involved a 15-year sentence for victimizing 34 people. Therefore, as advanced by the Crown, it is submitted more for the clear statement, based on Friesen, that:

The 'new direction' set by the court was to give better effect to Parliament's repeated message that sentences pertaining to sexual violence must increase.

R. v. Poulsen, 2020 ONCJ 440

-         The offender was convicted of multiple sexual assaults against a 14-year-old victim who was in his home, under the influence of hallucinogenic drugs, and under his direct control. It involved digital touching, sexual intercourse and fellatio. He recorded it on his phone. That added to the harm suffered by the victim. There was clear evidence of significant actual harm. Though there was concern because he was the single parent of a daughter around the same age, and had contact with her friends, he was determined to be a low risk to reoffend and to have real prospects for rehabilitation. He was sentenced to 4 1/2 years’ imprisonment.

-         Again, this is a Provincial level decision from a different jurisdiction and, for that reason, carries less weight. Given the multiplicity of the incidents, the degree of harm, and the lack of guilty plea, in Poulsen, despite the prospects for rehabilitation being greater than those in the case at hand, a comparison of the relevant factors supports a lower sentence in the case at hand.

R. v. N.M., is a Nova Scotia Provincial Court decision rendered September 21, 2020. It is unreported, but a transcript was provided.

-         The offender, who was convicted following trial, was the victim's father. The offences were committed against her when she was between the ages of 5 and 17. They included: having her bend over while he masturbated and touched her; having her take his penis into her mouth 1 to 3 times; putting his hands on her breasts and vagina on multiple occasions; putting his mouth on her breasts and vagina; and, when she was a young child, putting her hand on his penis. There was evidence of significant actual harm. The court concluded that there were no mitigating factors. It did not consider gainful employment and lack of other serious criminality to be "truly mitigating". A sentence of 8 years’ imprisonment was imposed.

-         Comparing the circumstances of the case at hand, with those in N.M., clearly supports a lower sentence in the case at hand, particularly considering the multiplicity of incidents, over a period of about 12 years, commencing when the victim was only five.

Friesen itself is also provided as a comparison case.

-         In that case, the 29-year-old offender pled guilty to sexual interference and attempted extortion. He and the victim's mother were engaging in sexual intercourse. He told her to bring her four-year-old daughter 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 child into the bedroom and laid her naked on the bed. The child cried and tried to flee. They prevented her from escaping. As she was screaming he directed the mother to force her head down so that he could force his penis into her mouth. The child's screams awoke the mother's friend. She entered, observed the violence and removed child. He then threatened that, if the mother did not bring the child back, he would say that she had sexually abused her one-year-old son. She was trying to get one of her children back from the child protection agency at the time. The offender added that he intended to rape the child while she cried.

-         He had no prior record. He had experienced neglect and physical, as well as sexual, violence as a child. He became homeless and sold sex on the street to survive. He suffered from depression and anxiety. He expressed a desire to attend counselling and was remorseful. However, he was at a high risk to reoffend. As in the case at hand, he reported being under the influence of alcohol and having blacked out at the time of the offences. Yet, he maintained that alcohol use was not a problem, and he had no strategies in place to mitigate future risk. The Supreme Court of Canada restored the sentence imposed by the trial judge, which was 6 years’ imprisonment for the sexual interference, and a concurrent 6 year sentence for the attempted extortion.

-         Though the circumstances of the offence were much more extreme than those in the case at hand, and involved a much younger victim, the offender was a not in a position of trust in relation to the child. Instead, he used the child's mother, who was in a position of trust, to attempt to provide him access to the four-year-old child.  Mr. Friesen's difficult childhood and life, as well as his mental health issues, provided additional mitigating factors that do not obtain in the case at hand. On the other hand, the fact that he coordinated sexual violence against the child by two people, is an aggravating factor that does not obtain in the case at hand. There was not only the harm to the child to consider, the manner in which the offence unfolded also imported potential or actual harm to the mother, above and beyond that which can be expected when the child is sexually victimized without the parents’ involvement.

-         There are a lot of the similarities between Friesen and the case at hand. However, the circumstances in Friesen are sufficiently distinct that they do not support a sentence as high as 6 years in the case at hand.

Restraint ( s. 718.2 (d) & (e))

[71]         I have considered the principle that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.

[72]         I have considered the principle that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[73]         In my view, no sanction less restrictive than imprisonment is appropriate in the case at hand.

SENTENCE

[74]         Considering the directions in Friesen; the objectives, principles and factors that I have noted; the comparison cases; and the circumstances of the case at hand, I find that a fit and proper length of sentence is three years’ imprisonment consecutive to any sentence that he may be serving at this point.

[75]         A conditional sentence order is not available for a number of reasons.

-         As highlighted by both Crown and Defence, it is excluded by s. 742.1 (f) of the Criminal Code.

-         A sentence of less than 2 years would not satisfy the objectives and principles of sentencing, and serving his sentence in the community would not be “consistent with the fundamental purpose and principles of sentencing” set out in sections 718 to 718.2 of the Criminal Code. Therefore, a conditional sentence, or sentence to be served in the community, is not a fit sentencing option.

[76]         I do agree with the comments made by the Defence, based on annotations of the Supreme Court of Canada decision in R v Proulx, [2000] 1 S.C.R. 61, that conditional sentence orders can provide significant deterrence and denunciation if properly crafted. However, even if it were available, it would not sufficiently do so in the circumstances of the case at hand.

[77]         For obvious reasons, a sentence involving only a probation order would not do so either.

[78]         So, I sentence you, Mr. R., to 3 years’ imprisonment, consecutive to any sentence you may be serving.

Ancillary Orders

[79]         In relation to the DNA order requested, sexual assault offences are primary designated offenses in subsection (a) of definition in s. 487.04. Therefore a DNA order is absolutely mandatory. There is no discretion to decline to make the order on the basis of grossly disproportionate impact. So a DNA order will issue.

[80]         There is a request for  a s. 109 Firearms Prohibition Order. It is mandatory for a minimum period of 10 years, and for some specified items, for life. The Crown is seeking life for everything. The Crown submits the s.109 Prohibition should be for life because Mr. R. committed an offence of violence that is of a serious nature. The Crown added that it routinely asks for lifetime prohibitions, and they are routinely granted. I do not recall ever receiving a Crown recommendation for a lifetime Firearms Prohibition on a first-offence that did not involve, directly or indirectly, a firearm or a threat of future violence. I also do not recall ever granting one in those circumstances. There is no indication that firearms have any relation, whatsoever, to this offence. There is no indication of any threat of future violence. Mr. R. has been on release under a summons to appear since May of 2018. He was not subject to any release conditions to refrain from possessing firearms, which one does often see with offences of violence. That indicates the police did not see him as a threat to use a firearm, even relatively soon after the event. In the circumstances of this case, I see no need to extend the prohibition past the 10 year minimum, which in my experience, both as a lawyer and as a judge, is almost always granted for a first offence in circumstances where firearms have no relation to the offence and there is no indication of a threat of future violence. Therefore, as required by s.109, I grant the s.109 Prohibition, starting today and ending 10 years after his release from imprisonment, in relation to the items listed in s.109(2)(a), and, also as required by s.109, for life in relation to items listed in s.109(2)(b).

[81]         I will ask Crown counsel to revise the order accordingly.

[82]         There is a request for a SOIRA Order. S. 271 is a designated offence under s. 490.011(1)(a). Pursuant to s. 490.013 (1)(b), the SOIRA order is to be for 20 years.

[83]         There is a request for a non-communication order under s.743.21. The request pursuant to that section of the Criminal Code, is that you be prohibited from communicating, directly or indirectly, with the victim during the custodial period of your sentence, with the exception that you can do so by way of the letter of apology you have already written, and which your lawyer will deliver to S.R. through the Crown.

[84]         So, further, pursuant to section 743.21 of the Criminal Code, I prohibit you from communicating, directly or indirectly, with the victim, during the custodial period of your sentence, except by way of the letter of apology you have already written and which your lawyer will deliver to S.R. through the Crown.

[85]         The s.153 offence is dismissed, with the Crown’s confirmation of want of prosecution, and on Defence’s motion to dismiss.

[86]         Mr. R., I saw your emotional feelings about this. I do not know if it is a matter of you having procrastinated, but I would have liked to have seen you do more, sooner. Hopefully, there will be something in the programming in the institution that you will find resonance with, and that you can come through this a better person. All the best to you.

 

Pierre Muise, J.