R v CEB: Balancing Gladue Factors in Sentencing for Cases of Child Sexual Abuse - Kerith Tung

In this blog entry, I will describe the recent case of R v CEB. I will also discuss why I believe that Gladue factors were correctly balanced against the harsher sentencing standards typically applied to cases dealing with child sexual abuse.

R v CEB and the Application of R v Friesen

In the case of R v CEB (“CEB”), the accused, CEB, was charged with sexual interference against his step-daughter on three separate occasions.[1] CEB was also charged with assault against his step-son, but this blog entry will focus on the analysis of the charge of sexual interference. The first incident between CEB and his step-daughter, MD, occurred when MD was six years old. CEB had laid down with MD and touched her vagina over her clothes.[2] In the second incident, which happened in the same approximate time frame, CEB instructed MD on how to perform oral sex by pretending his penis was a lollipop.[3] In the final incident, CEB attempted penetration of MD while she was asleep; at the time of this incident, MD was approximately ten years of age.[4] CEB pled guilty to all charges.

The Crown sought a sentence of six and a half years of incarceration for the charge of sexual interference involving MD, along with several ancillary orders.[5] The defence sought a sentence of five and a half years.[6] In determining an appropriate sentence, the judge relied on the landmark case of R v Friesen (“Friesen”), which was decided on appeal from a decision of the Manitoba Court of Appeal.[7] In Friesen, the SCC determined that sentences for sexual offences against children should be increased to reflect the serious harm that sexual abuse crimes inflict on children and society; these increased sentences had been intended by Parliament through various bills.[8] Importantly, the SCC did not set a standard starting point for sentencing in relation to child sex crimes. Instead, the SCC outlined several broad non-exhaustive factors for courts to consider when determining an appropriate sentence; the factors were applied in CEB as thus:[9]

(a) likelihood to reoffend

Although CEB had a prior conviction for sexual assault on a child before the incidents involving MD, there was no record of CEB committing similar offences in the past 20 years as of the trial.

(b) the abuse of a position of trust or authority

MD was the step-daughter of CEB, which clearly indicated a relationship of trust.

(c) the duration and frequency of the abuse

There were three incidents of sexual interference with MD within approximately five years.

(d) the age of the victim

MD was very young when the incidents happened, being six years of age during the first two incidents and ten years old in the third incident.

(e) the degree of physical interference

All of the actions done to MD by CEB were considered an assault on MD’s dignity and physical autonomy in a position of extreme vulnerability.

(f) victim participation

MD, being a child, was incapable of consenting to all of the actions done to her by CEB.

Several of the Friesen factors, such as the abuse of trust and abuse of a person under the age of eighteen, are codified under s. 718.2(a) of the Criminal Code as aggravating factors that can lead to an increased sentence.[10] With regard to CEB’s case, however, the judge considered two mitigating factors that applied to CEB. The first mitigating factor was that, although CEB had nothing to say to the victims by way of apology, CEB had pled guilty to all charges.[11] As such, the judge accepted the guilty plea as some acceptance of responsibility. The second mitigating factor was the consideration of Gladue factors that were identified by the defence counsel.[12] CEB was a child of parents that were survivors of the residential school system; alcoholism and violence in CEB’s household was a common occurrence.[13] Furthermore, CEB himself had attended an Indian Day School where he was subjected to sexual and physical abuse.[14] The judge accepted the history of sexual and physical abuse as Gladue factors that would diminish CEB’s moral responsibility to some extent. In balancing the mitigating and aggravating factors (in the context of Friesen), the judge decided that the appropriate sentence for CEB was six years for the sexual interference against MD and an additional six months for the assault against CEB’s stepson; several ancillary orders were also granted.[15]

Balancing Gladue Factors and Child Sex Abuse

I agree with the reasoning set out by the judge in determining the sentence for CEB. Appropriate weight and consideration were given to the difficult nature of child sex abuse and Gladue factors. As stated in Friesen:

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… Sexual violence against children also causes several forms of long-term harm that manifest themselves during the victim’s adult years.[16]

The truth of this statement is reflected in the Victim Impact Statement of MD, in which MD described the long-lasting impact of CEB’s actions including, but not limited to, nightmares, night terrors, depression, and attempted suicide.[17] I believe that the judge was right to consider the long term harm suffered by MD as an aggravating factor in determining an appropriate sentence. Although not explicitly mentioned in CEB, s. 718.2(a)(iii.1) of the Criminal Code lists “evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation” as an aggravating circumstance that can contribute to an increased sentence.[18] While factors such as abuse of persons under eighteen and abuse of positions of trust are objective bright-lines, “significant impact” seems like a broad consideration that makes it easier for victims of sexual abuse to argue for an increased sentence. In my opinion, this consideration of the victim’s subjective experience is especially important in reflecting the purpose of increased sentences for child sexual abuse: to separate offenders from society when necessary and deter actions that would cause children harm.

While I stand by the idea that increased sentences are proportionate to the harm suffered by victims of child sexual abuse, the long lasting harm suffered by Indigenous peoples as a result of colonialism must also be taken into consideration. The Gladue factors were developed in the case of R v Gladue (“Gladue”) to address the over-representation of Indigenous people in Canadian prisons.[19] Gladue factors were meant to direct how courts should approach s 718.2(e) of the Criminal Code, which outlines that, where reasonable, sanctions other than imprisonment should be considered with particular attention to circumstances of Aboriginal offenders.[20] Gladue also states that in situations where there are no alternatives to incarceration, the length of the term must be carefully considered.[21]

I very much agree that, where possible, alternatives to imprisonment should be pursued. For example, in speaking with judges through a judge shadowing program in the past semester of school, I learned of restorative justice initiatives that seek to restore relationships and emphasize survivor healing and offender accountability.[22] That being said, I believe that incarceration is necessary in cases of child sexual abuse. In my opinion, alternatives such as restorative justice, while perhaps helpful in a myriad of other situations or in tandem with other sanctions, would not adequately address the harms suffered by survivors of child sexual abuse. CEB’s guilty plea was seen as a mitigating factor not only because it indicated some acceptance of responsibility, but also because it ensured that MD would not be forced to testify about her painful experience; a practice that could reintroduce trauma to victims of child sexual abuse if undertaken in restorative justice contexts.[23] Although incarceration may not reflect the purpose of rehabilitation as set out in s. 718(d) of the Criminal Code, cases such as Friesen and CEB have demonstrated that the harms suffered in cases of child sexual abuse warrant proportionately serious sanctions.[24] Incarceration ensures that the other purposes of deterrence, denunciation, and separation as set out in s. 718 are fulfilled.[25]

Conclusion

While Gladue did not provide direction for situations of child sexual abuse, Friesen was careful to consider the circumstances of Indigenous offenders: “[W]here the person before the court is Indigenous, courts must apply the principles from R v Gladue… even in extremely grave cases of sexual violence against children….”[26] The judge in CEB, without diminishing the harm suffered by MD, appropriately took into consideration Gladue factors and the systematic harm that CEB experienced. As such, I believe that the six year sentence, sitting firmly as a middle ground between the sentences sought by the Crown and defence counsel, was an appropriate sentence.

[1] R v CEB, 2022 MBQB 10 at para 2. [2] Ibid. [3] Ibid. [4] Ibid. [5] Ibid at para 5. [6] Ibid. [7] Ibid at para 8; R v Friesen, 2020 SCC 9. [8] Friesen, supra note 7 at para 98. [9] CEB, supra note 1 at paras 24-30; see also Friesen, supra note 7 at paras 121-154. [10] CEB, supra note 1 at para 23. [11] Ibid at para 21. [12] Ibid. [13] Ibid at para 18. [14] Ibid. [15] Ibid at para 32. [16] Friesen, supra note 7 at paras 1, 81. [17] CEB, supra note 1 at para 10. [18] Criminal Code, RSC 1985, c C-46, s 718.2(a)(iii.1). [19] R v Gladue, [1999] 1 SCR 688 at para 47. [20] Ibid at para 38; see also Criminal Code, supra note 18, s 718.2(e). [21] Gladue, supra note 19 at para 93. [22] “Restorative Justice” (last accessed 12 April 2022), online: Government of Manitoba <www.gov.mb.ca/justice/commsafe/restorjus.html#:~:text=In%20Manitoba%2C%20a%20restorative%20justice,into%20effect%20November%2018%2C%202015> [perma.cc/Y9FZ-Y7V2]. [23] CEB, supra note 1 at para 16; Restorative Justice, supra note 22. [24] Criminal Code, supra note 18, s 718(d). [25] Ibid, s 718. [26] Friesen, supra note 7 at para 92.