R v Friesen – A Crash Course in Sentencing Child Sexual Offenders in Canada - Daniele Zerbo

In R v Friesen (R v Friesen, 2020 SCC 9), the Supreme Court of Canada took a decisive stance on sentencing concerning offences of a sexual nature perpetrated against children. Friesen is a landmark decision because it established sentencing guidelines for lower courts. Specifically, the court’s analysis clarifies three broad principles in sentencing law concerning sexual crimes against children. First, the court affirmed the standard of review for appellate courts established in Lacasse (R v Lacasse, 2015 SCC 16). In particular, it clarified how an appellate court should proceed if it determines that an error in principle occurred during sentencing. Secondly, the court explained appellate deference, the general doctrine that appeal courts ought to defer to lower courts' judgement on sentencing, and how this restricts sentencing ranges and starting points. Finally, the court indicates that sentences for sexual offences against children must generally increase to reflect society’s modern understanding of such offences’ wrongfulness and harm (Friesen, supra at paras 3-5). This decision is extensive and provides much insight into sentencing law, far exceeding this article’s scope. The focus here is to give a brief overview of the critical insight and clarity of this decision related to sentencing relating to sexual crimes against children.

The precise facts of the offences committed are not relevant. However, some procedural background is necessary to understand how the court came to examine the critical issue of starting points and sentencing ranges concerning sexual crimes committed against children. Friesen pled guilty in provincial court to sexual interference with a child and attempted extortion of the victim’s mother. In determining the appropriate length of sentence, the judge applied Sidwell (2015 MBCA 56), a prior decision of the Manitoba Court of Appeal. In Sidwell, the court established that a sentencing judge, when considering the length of sentence to impose for a sexual offence against a child, where a relationship of trust exists between the offender and the victim, a four to five year starting point is appropriate (Friesen, supra at para 18). However, the judge found that Friesen was not in a position of trust with the victim (Ibid at para 18). Ultimately, the court imposed two six-year terms of incarceration for each offence, to be served concurrently (Ibid at para 17).

Friesen appealed this decision to the Manitoba Court of Appeal. The appellate judge reasoned that applying the starting point established in Sidwell was an error in principle. The finding of such an error was the basis for the court’s intervention in the sentence, where the appeal court would usually exercise appellate deference. The court reduced the sentence to four and a half years (Friesen, supra at para 22). Although the sentencing judge adequately accounted for both aggravating and mitigating factors, the Sidwell starting point presumes a relationship of trust. As mentioned above, the facts of the case did not support this conclusion. The Crown appealed this decision to the Supreme Court of Canada, where the appeal was ultimately allowed. The court determined that no error in principle had occurred at all and reinstated the original sentence.

This decision allowed the SCC to examine, among other things, the appropriateness of appellate court intervention in the sentencing decisions of a lower court. The finding of the appeal court that the sentencing judge committed an error in principle. On this point, the court confirmed that it is not an error in principle if a sentencing judge diverges from a starting point or sentencing range. Indeed, the sentencing judge must do so where the facts of the case merit such a deviation (Friesen, supra at para 35). The Manitoba Court of Appeal, in treating the application of the Sidwell starting point as an error in principle for want of the existence of a trust relationship, mistakenly characterized starting points as a standard principle of law to be applied rigidly in sentencing. The Supreme Court clarified, if any doubt existed at all, that sentencing ranges generally, and starting points specifically, are mere guidelines for sentencing judges (Friesen, supra at para 37). In the court’s view, there is a danger in treating sentencing ranges and starting points as “hard and fast,” binding standards (Friesen, supra at para 37). In short, a failure to conform precisely to a starting point is not an error in principle. It is a mistake for an appeal court to, under the guise of a standard of review, attempt to enforce starting points or sentencing ranges in cases of sexual offences against children. To do so, the court reasoned, would “usurp the role of Parliament in creating categories of offences” (Friesen, supra at para 37).

The SCC emphasized that an appellate court’s function is to develop the law and provide guidance for lower courts tasked with imposing appropriate sentences on offenders. In doing so, starting points and sentencing ranges might emerge organically from an analysis of existing precedents. However, it is sometimes just for courts to diverge from established case law, particularly where the principles contained therein fail to recognize the modern understanding of the gravity of certain offences (Friesen, supra at para 35). As an instructive body, appeal courts must leave sentencing judges equipped with the frameworks and guidelines to impose appropriate sentences. The court recognized that the sentencing stage is “one of the most important and delicate stages of the criminal justice process” (Ibid at para 43). In sentencing, the judge must weigh both the wrongfulness and harm associated with an offence of this nature. It follows from the appellate deference principle that an appeal court must generally defer the sentence initially imposed by the sentencing judge (Ibid at para 50).

The Supreme Court acknowledged an alarming historical trend in past decisions regarding the sentencing of offenders who perpetrate sexual crimes against children. For example, the treatment of an absence of any objective physical harm as a mitigating factor in sentencing (Ibid at para 82). Without question, sexual crimes against children are inherently harmful to the victim and the broader community. It is inappropriate for sentencing judges, whether at the trial level or on appeal where a standard of review might occur, to treat the lack of objective harm as a mitigating factor favouring an offender. Moving forward, trial judges and appellate courts must follow the principles set out in Friesen, supra, and give credence to three facts concerning harm. First, the sentence must recognize the wrongfulness integral to these offences. Second, the court must recognize the potential harm to children that stems from the offence. Finally, the sentence should reflect the actual harm that a child suffered due to the offence. The degree in which any of these factors may affect the sentence will vary from case to case, but notwithstanding, a court must give effect to them (Friesen, supra at paras 76-78).

The court emphasized that harm to a child might not present itself objectively when sentencing an offender. Thus, a sentencing judge must appreciate the reasonable foreseeability of future harm when determining the appropriate sentence (Ibid at paras 83-84). In this regard, the court provides an extensive review of the various facets of harm flowing from sexual offences against children (Ibid at paras 51-72). Although outside the scope of this article to address each, it is enough to say that the Supreme Court’s assessment of all facets of harm was extensive.

Turning again to the issue of starting points and sentencing ranges, the court did not indicate that an appeal court can never establish such guidelines, but treating them as strict standards or templates that apply in the presence or absence of one fact or another is not their intended function. Notably, the court instructed lower courts to deviate from precedents if the sentence imposed fails to capture the modern appreciation of harm emphasized by Parliament and broader society (Ibid at para 110). Indeed, a court should disregard even relatively recent precedents if it is apparent that in those reasons, misconceptions and myths regarding sexual offences against children evidence themselves within the analysis. For example, there is no implied consent with children—full stop. Thus, a sentencing judge must treat any semblance of a child’s complacency toward the acts perpetrated against them as an aggravating factor against the offender because it implies some form of grooming or otherwise ill-rooted relationship of “trust” (Ibid, at para 125).

To achieve the goal of proportionate sentences, courts emphasize that sentencing ranges and starting points are not “straight-jackets” but rather “historical portraits” (Ibid at para 108). As mentioned above, the precedential value of past decisions is diminished in relation to sentencing, reflecting modern understandings about the harm of sexual offences against children. Such offences have lasting and often immense consequences for victims, which take years to work through. Canadian jurisprudence, bolstered by Parliament’s amendments related to sentencing in the Criminal Code of Canada, is abandoning outdated notions associated with sexual offences. Having all but vanquished misconceptions from, for example, the law of evidence, we must not let such ill-reasoned ideology infiltrate and reappear at the sentencing stage. Although not the end-all solution for dealing with sexual crimes against children, the principles reiterated and clarified in Friesen are a testament to the Supreme Court of Canada’s educational role, which will guide courts for years to come.