Appellate Intervention Warranted where the Majority Disagrees with the Sentencing Judge - Anonymous

R v Friesen (“Friesen”) was one of the most impactful decisions of the Supreme Court of Canada (“the Court”) in 2020. Friesen changed and explained how courts across the country should address instances of sexual offences against children and modernized the judicial system’s approach to such instances. Not only did Friesen change the way that courts view the numerous harms (and numerous people they affect) flowing from sexual offences against children, but it also provided some soft guidance on sentencing procedure for such offences.

In R v SADF (“SADF”), a recent appeal before the Manitoba Court of Appeal (“the MBCA”), Friesen was one of the guiding cases which the majority relied heavily upon in their decision. The facts of SADF are particularly startling and involve a six- and eight-year-old child who were touched and penetrated sexually by their father figure on a number of occasions. At the time of sentencing, the sentencing judge sentenced the accused to a global penalty of four years and six months for two counts of sexual interference (two years three months for each count served consecutively). In arriving at this number, the sentencing judge recognized that the accused was abused as a child and demonstrated insight and that a six year sentence (as sought by the Crown) would be crushing with respects to the accused’s chance of rehabilitation. Despite these mitigating factors, the sentencing judge decided on a sentence of six years prior to taking a last look which ultimately resulted in a more lenient sentence.

The Crown subsequently appealed on the grounds that the sentencing judge failed to recognize the gravity of the offences, the moral blameworthiness of the accused, and erred in applying the totality principle, resulting in a disproportionate sentence. The majority of the MBCA recognized that the sentence was only appealable where there was a material error resulting in a sentence that was demonstrably unfit. In quantifying what constitutes a material error, they highlighted that it includes a failure to consider a relevant factor or an erroneous consideration of an aggravating or mitigating factor. These potential errors flowed into the MBCA’s analysis of the sentencing judge’s decision.

In effect, the majority of the MBCA found that the sentencing judge did not give appropriate consideration to the seriousness of the offence, something for which they largely relied upon: Friesen, deterrence/denunciation, and section 718.2(a) of the Criminal Code (“the Code”) (which legislates that it’s an aggravating factor on sentencing where a victim is under 18 years of age). The MBCA in SADF found that it was not enough for the judge to state that these offences were serious and fail to comment on the circumstances. Instead, they found the judge was focused much more heavily on the accused and their personal circumstances leading her to underestimate the gravity of the offences. With regard to the accused’s moral culpability, the majority of the MBCA held that, in light of Friesen, which recognized that the abuse of trust by family members elevates the moral blameworthiness, in addition to the risk-taking and harm caused by the offender, the sentencing judge failed to appreciate the accused’s high moral culpability. Finally, with regard to totality, the majority reviewed the factors on “last look” in R v Hutchings (“Hutchings”) and found that the sentencing judge only considered the accused’s prospects of rehabilitation in reducing the sentence to four years six months, without further consideration of other factors to assess the totality of the sentence. Unsurprisingly, on this basis, the majority found that the sentence imposed on the accused was demonstrably unfit and they sought to arrive at the appropriate sentence.

In arriving at the appropriate sentence, the majority relied upon the Court’s decision in Friesen that mid-single digit sentences are normal and upper-single digit sentences should not be unusual to justify their decision to impose a six year custodial sentence upon the accused.

Fascinatingly, this is one of few cases in recent times before the MBCA which attracted a dissenting opinion, in this case, from Monnin JA. The dissent in SADF emphasized the importance of deference in sentencing, especially in docket courts which are fast moving and have numerous matters on the go. For those unfamiliar with the term, docket courts are almost like an all-call for matters in which a judge hears a number of matters throughout the morning or afternoon, typically with little forewarning or advanced knowledge on what is being heard that day unless materials are filed. Monnin JA posited that the majority was critical of the sentencing judge’s sentence due to a lack of detail. However, looking holistically at the judgement, Monnin JA found no errors were made and the sentencing judge did consider the appropriate factors and addressed the appropriate concerns. In effect, her reasoning didn’t need to be explained for every factor and Monnin JA advocated a position in favour of significant deference.

SADF is a particularly interesting case since it appears that the majority usurped the sentencing judge’s reasons in favour of a higher sentence. It appears that Friesen and the discussion of custodial sentences of upper-single digit ranges for sexual offences against children appealed to the majority. In effect, the majority seems to have disliked the ends reached by the sentencing judge and instead wanted to substitute their own ends…. but to do so they needed to find the means, namely, a material error. Consequently, the opinion of Monnin JA is quite compelling since it addresses the importance of deference as well as the sentencing judge’s brief but discernible reasons for her decision. Moreover, it highlights the numerous ways in which the majority’s concerns are actually addressed by the sentencing judge (just less explicitly given the nature of docket court). This leaves the casual jurisprudential reader wondering why appellate intervention was warranted in this case. The result of all of this is such that it appears the majority was concerned about setting a precedent where an accused, sentenced for two different counts of sexual interference (against two different children), got a relatively “light” sentence in broad terms. It will be interesting to see whether or not this case gets any further attention and whether an appeal to the Court arises in light of both Friesen and the apparent usurpation of the discretion of the sentencing judge by the majority of the MBCA.

Citations

R v Friesen, 2020 SCC 9.

R v Hutchings, 2012 NLCA 2.

R v SADF, 2021 MBCA 22.