Moving in the Right Direction -SJ

In R v. Friesen (R. v. Friesen, 2020 SCC 9, 2020 CSC 9, 2020 CarswellMan 122 [Friesen]), the Supreme Court of Canada addressed the need for sentencing reform in cases involving sexual violence against children. The Court set out a new framework for sentencing. The following will outline the case facts, the new sentencing framework, and the impact of this new framework.

Facts

The case involved a four-year-old child who was sexually assaulted by a man her mother met on an online dating site. The mother of the child picked up the accused and brought him to her house. The accused requested she bring her child into the bedroom so they could perform oral sex on the child. The mother held down the child while the accused committed the assault. The mother’s friend, who had been babysitting, woke up and removed the child from the room. The accused then demanded that the child be brought back into the room and threatened to tell the friend that the mother had sexually abused her son. The mother brought the child back and provided the accused an opportunity to further abuse the child.

The accused was found guilty of sexual interference and attempted extortion. The trial judge found the accused was not in a position of trust over the complainant but, nevertheless, used a starting point for sentencing that normally applied to child sexual assaults where the accused is in a position of trust. He sentenced the accused to six years for sexual interference and six years for attempted extortion to be served concurrently.

The accused successfully appealed, and the Manitoba Court of Appeal reduced the sentence to four and a half years for sexual interference and one and a half years concurrent for attempted extortion. The Court of Appeal found that the trial judge made an error in principle by applying the starting point for a sexual interference that involves a position of trust, and that error had resulted in a demonstrably unfit sentence. The Crown appealed to the Supreme Court of Canada. The appeal was allowed. The Supreme Court found that the trial judge did not err in applying the starting point on the basis of all the aggravating factors present in that case, even if there was no position of trust. The trial judge’s initial sentence was reinstated.

New Sentencing Framework

Section 718.2(b) of the Criminal Code (Criminal Code, RSC 1985, c C-46) states, “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” However, in Friesen the Supreme Court hit the reset button in regard to sentencing for sexual offences against children and provided a new framework for assessing and weighing appropriate considerations on a case-by-case basis.

The Supreme Court sent a strong message to those who sexually offend against children. The overall message appears clear that past sentences have not reflected the full gravity of the offences and have underestimated the likely and numerous potential harms to the victim. The Court suggested deviating from precedents where sentences are inappropriately low, and they note that higher sentences should be the norm and not the exception. Relying on precedents can result in a “dated” view and it fails to reflect society’s current views and awareness of the impact of sexual violence against children. Even recent precedents, those that still rely on dated views and analyses, need to be met with caution. Society’s appreciation of the harm in these types of cases has changed and the law must change accordingly, because protecting children is one of the fundamental values of our society. The inherent harmfulness and wrongfulness of sexual violence against children is a fact that courts must accept, and this fact has to be given proper weight when determining the gravity of each individual offence and degree of responsibility of each individual offender. It is not enough to simply say these acts are egregious; the sentence must also reflect that notion.

In the past, courts have inappropriately placed too much focus on the precise sexual act perpetrated and even ranked these acts - from penile-penetration at the most serious down to sexual touching at the lower end of the scale. Some sentencing ranges were created entirely based on this fact alone. Friesen gives us many more factors to consider and lays out the many aggravating features that can exist and should properly raise the sentences accordingly. The harm that is inflicted on a victim is greater than the act itself. We must look further than the specific physical act, placing appropriate weight instead on the effects that continue to develop well beyond the time of the act and the individuals involved. The Court acknowledged the ripple effect of sexual violence against children and the far reach this violence has on parents, caregivers, and family members. There are many secondary victims of this type of crime.

Therefore, a more holistic approach is appropriate, focused on the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children. Outside factors to consider are the relational harm and harm to families, communities, and society. The Supreme Court is very clear that relational impact and other additional harms are all foreseeable and directly attributable to the actions of the perpetrator. This is a consideration for sentencing and is viewed as an aggravating factor that would properly increase the sentence.

The effectiveness of this framework rests on the importance of sentencing judges properly understanding the wrongfulness of sexual offenses against children. Failure to recognize this can result in unreasonable underestimations of the gravity of the offense. Specifically, it can result in stereotypical reasoning that filters into the sentencing process and misapplication of aggravating and mitigating factors. However, with proper understanding of the harmfulness of this type of crime, we should see sentences begin to increase to a level that adequately reflects today’s understanding of the nature and gravity of sexual violence against children, which will ensure past biases and myths do not continue to filter into the sentencing process. (Friesen)

Impact of New Framework

Since Friesen, the courts have referenced the new framework provided by the Supreme Court. However, it is not enough to just mention the case, the sentencing approach followed must also reflect the principles set out. In R v. K.N.D.W. (R. v. K.N.D.W., [2019] M.J. No. 360 2020 MBCA 52 Lexis), the Manitoba Court of Appeal specifically addressed the Friesen case in their decision to increase a sentence to five years from the original sentence of two years. The Court found that the Supreme Court had pressed the reset button in Friesen when it comes to the approach to be used in sentencing for sexual offences against children. Sentences of this nature should reflect both the gravity of the offence and also Parliament’s intention in amending Criminal Code provisions regarding these types of offences. According to our Court of Appeal, Friesen sent the message that these sentences needed to go up.

Nevertheless, in a recent decision from the Manitoba Queen’s Bench (R. v. G.J.K., [2020] MBQB 130), the sentencing judge still relied on an old precedent in the sentencing analysis. The Court does reference Friesen in the decision, but they do not follow the new framework. The Court simply turns back to an old precedent to establish the starting point for sentencing. The Court’s approach was to use an old precedent, Sidwell, and claim it does not offend the new approach set out in Friesen. Yet, the Court does not actually appear to engage with the new framework at all. In my view, the sentence that was imposed was too low and the analysis did not follow Friesen. The hope is that the Supreme Court’s framework will be at the forefront in future sentencing decisions, and not simply an afterthought or brief reference. Whether that happens or not is something to be seen.

I strongly agree with the Supreme Court’s view. The sentences should be proportional to the crime and proportionality requires the courts to take the full gravity of the offence into account. Focusing on just the act itself when determining a sentence diminishes the magnitude of the impact on the victim and further violates their dignity and value. The ability for the law to change is of the utmost importance as the climate is ever changing; our understanding is ever changing. The addition of the internet brings about even more challenges that need to be taken into consideration. This is an important step forward in appropriately recognizing the value we place on our children and our society’s desire to protect them.