On October 16, 2019, the Supreme Court of Canada allowed the appeal with reasons to follow in the following appeal. Here are those reasons:

Criminal Law: Sexual Offences Against Children

R. v. Friesen2020 SCC 9 (38300)

“F encountered the victim’s mother on an online dating website. One night, the mother brought F to her residence, where she and F engaged in consensual sexual intercourse in the mother’s bedroom. F then told the mother to bring the victim, her four‑year‑old daughter, into the bedroom. F and the mother subjected the victim to sexual violence. Her screams and cries awoke the mother’s friend who removed the victim from the room. F then threatened the mother that unless she brought the victim back, he would tell the mother’s friend that the mother had previously sexually abused her one‑year‑old son.

F pled guilty to sexual interference with the victim and attempted extortion of the mother. The sentencing judge imposed a six‑year sentence for sexual interference and a concurrent six‑year sentence for attempted extortion. He determined that the four‑to‑five year sentencing starting point identified previously by the Manitoba Court of Appeal for major sexual assault committed on a young person within a trust relationship was appropriate even though F did not stand in a position of trust to the victim. The Court of Appeal found that the sentencing judge had erred in principle by applying the starting point, which presumed the existence of a trust relationship, when the sentencing judge had found that there was none. The Court of Appeal conducted a fresh analysis and reduced the sentence to four and one‑half years’ incarceration for sexual interference and to eighteen months’ incarceration to be served concurrently for attempted extortion. The Crown appeals to the Court from the Court of Appeal’s interference with the sentence for the sexual interference offence.”
The S.C.C. (9:0) allowed the appeal and restored the sentence imposed by the sentencing judge.

In joint reasons, Chief Justice Wagner and Justice Rowe wrote as follows (at paras. 1-5, 56-59, 75-76, 81-82, 106-107, 119-120, 150, 154, 180-183):

“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. Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year. This case is about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children.

The accused pled guilty to sexual interference with a young child and attempted extortion of the child’s mother. The sentencing judge determined that a six-year global sentence was appropriate. The Court of Appeal reduced the sentence to four and one-half years. We would allow the Crown’s appeal and restore the six-year sentence.

We wish to convey three overarching points in these reasons. First, we affirm the standard of review for sentencing set out in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, and especially the guidance about how an appellate court should proceed when it identifies an error in principle.

Second, we clarify the limits that appellate deference imposes on both sentencing ranges and starting points, and outline particular concerns associated with starting point sentencing.

Third, 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.


This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality 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, as this Court held in R. v. McCraw, [1991] 3 S.C.R. 72, “may often be more pervasive and permanent in its effect than any physical harm” (p. 81).

A number of this Court’s decisions provide insight into these forms of harm. In R. v. L. (D.O.), [1993] 4 S.C.R. 419, L’Heureux-Dubé J. emphasized the emotional trauma that the nine-year old complainant experienced from sexual violence (pp. 439-42). Similarly, in McDonnell, McLachlin J. (as she then was) stressed the emotional harm of “the violation of the child victim’s integrity and sense of self-worth and control over her body” that the child victim experienced as a result of being sexually assaulted while sleeping (para. 111). The likely result of the sexual assault would be “shame, embarrassment, unresolved anger, a reduced ability to trust others and fear that . . . people could and would abuse her and her body” (para. 113).

These forms of harm are particularly pronounced for children. Sexual violence can interfere with children’s self-fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to overcome adversity (Sharpe, at paras. 158, 184-85 and 188, per L’Heureux-Dubé, Gonthier and Bastarache JJ.; G. Renaud, The Sentencing Code of Canada: Principles and Objectives (2009), at § 12.64). For this reason, even a single instance of sexual violence can “permanently alter the course of a child’s life” (Stuckless (2019), at para. 136, per Pepall J.A.). As Otis J.A. explained in L. (J.-J.), at p. 250:

  • [translation] The shattering of the personality of a child at a stage where [the child’s] budding organization as a person has only a very fragile defensive structure, will result — in the long term — in suffering, distress and the loss of self‑esteem.

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 (R. v. J.R.G., [2013] B.C.J. No. 1401 (QL) (Prov. Ct.), at para. 26). Frequently, child victims make “valiant and repeated efforts to have someone believe their allegations” (I. Grant and J. Benedet, “The ‘Statutory Rape’ Myth: A Case Law Study of Sexual Assaults against Adolescent Girls” (2019), 31 C.J.W.L. 266, at p. 292 (“The ‘Statutory Rape’ Myth”)). 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” (R. v. Stuckless, 2016 ONCJ 338, at paras. 50 and 53 (CanLII), rev’d 2019 ONCA 504, 146 O.R. (3d) 752).

In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. Accurately understanding both factors is key to imposing a proportionate sentence (R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at paras. 43-44). The wrongfulness and the harmfulness impact both the gravity of the offence and the degree of responsibility of the offender. Taking the wrongfulness and harmfulness into account will ensure that the proportionality principle serves its function of “ensur[ing] that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused” (Nasogaluak, at para. 42).

 

Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers, and communities (see M. (C.A.), at para. 80; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 35). We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children. Specifically, courts must recognize and 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. We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case.


Sexual violence against children also causes several forms of long-term harm that manifest themselves during the victim’s adult years. First, children who are victims of sexual violence may have difficulty forming a loving, caring relationship with another adult as a result of the sexual violence. Second, children may be more prone to engage in sexual violence against children themselves when they reach adulthood (Woodward, at para. 72; D. (D.), at paras. 37-38). Third, children are more likely to struggle with substance abuse, mental illness, post-traumatic stress disorder, eating disorders, suicidal ideation, self-harming behaviour, anxiety, depression, sleep disturbances, anger, hostility, and poor self-esteem as adults (Bauman, at p. 355; Goldfinch, at para. 37; R. v. L.V., 2016 SKCA 74, 480 Sask.R. 181, at para. 104, citing D. Todd, “Sentencing of Adult Offenders in Cases Involving Sexual Abuse of Children: Too Little, Too Late? A View From the Pennsylvania Bench” (2004), 109 Penn. St. L. Rev. 487, at pp. 509-10).

We would emphasize that courts should reject the belief that there is no serious harm to children in the absence of additional physical violence (Benedet, at p. 299). As we have explained, any manner of physical sexual contact between an adult and a child is inherently violent and has the potential to cause harm. Even in child luring cases where all interactions occur online, the offender’s conduct can constitute a form of psychological sexual violence that has the potential to cause serious harm (see Rafiq, at paras. 44-45; Rayo, at paras. 172-74; L.M., at para. 26).

We would decline the Crown’s invitation to create a national starting point or sentencing range for sexual offences against children. Generally speaking, this Court is reluctant to pronounce on the specific length of sentence. The appropriate length and the setting of sentencing ranges or starting points are best left to provincial appellate courts (R. v. Gardiner, [1982] 2 S.C.R. 368, at pp. 396 and 404). These courts “are in the best position to know the particular circumstances in their jurisdictions” (Lacasse, at para. 95). Indeed, a degree of regional variation for sentences is legitimate (M. (C.A.), at para. 92). We would nonetheless emphasize that the guidance we provide about Parliament’s legislative initiatives and the contemporary understanding of the wrongfulness and harmfulness of sexual violence against children applies across Canada.

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.

Finally, we would direct appellate courts not to discount sexual interference in comparison to sexual assault. The British Columbia Court of Appeal appears to have done this by setting a range of two to six years for “sexual assault involving intercourse” in cases involving child victims while setting a range of one to three years for sexual interference (see Scofield, at para. 59; Williams, at para. 71).

It is an error of law to treat sexual interference as less serious than sexual assault. As stated above, Parliament has established the same maximum sentences for both sexual interference and sexual assault of a person under the age of 16. The elements of the offence are also similar, and a conviction for sexual assault of a child and for sexual interference with a child can frequently be supported on the same factual foundation (R. v. M. (S.J.), 2009 ONCA 244, 247 O.A.C. 178, at para. 8).

Some courts have, while acknowledging that a victim’s participation is not a mitigating factor, nevertheless treated it as relevant to determining a fit sentence (see Scofield, at para. 39; Caron Barrette, at para. 56). This is an error of law: this factor is not a legally relevant consideration at sentencing. The participation of a victim may coincide with the absence of certain aggravating factors, such as additional violence or unconsciousness. To be clear, the absence of an aggravating factor is not a mitigating factor.


Finally, a victim’s participation should never distract the court from the fact that adults always have a responsibility to refrain from engaging in sexual violence towards children. Adults, not children, are responsible for preventing sexual activity between children and adults (George, at para. 2; R. v. Audet, [1996] 2 S.C.R. 171, at para. 23). We would adopt the words of Fairburn J. (as she then was) in R. v. J.D., 2015 ONSC 5857:

  • Nor is it a mitigating factor that a child appears to acquiesce or even seek out the sexual attention of an adult. Where children appear to be seeking out such attention, it is often an outward manifestation of the child’s confusion arising from personal difficulties. It is the legal responsibility of adults who are faced with children who already exhibit signs of struggle, to protect them. Adults who see these situations as opportunities to satisfy their own sexual urges, are no better or worse than those who take steps to actively seek out their victims. [para. 25 (CanLII)]


Finally, we wish to comment briefly on the statement by Friesen’s former girlfriend to the author of the pre-sentence report that Friesen had a “hatred” for women (A.R., at p. 90). While we do not rely on this comment as an aggravating factor because Judge Stewart did not make any factual finding in relation to it, we do emphasize that judges should be attentive to evidence of an offender’s misogynistic attitudes. Such attitudes may have a significant bearing on, among other factors, moral blameworthiness, insight and likelihood to reoffend (see Hajar, at para. 161).

 

In his initial reasons, Judge Stewart imposed a single sentence without distinguishing between the sexual interference charge and the attempted extortion charge. He did not refer to the distinct aggravating and mitigating features of the attempted extortion charge. Near the end of the hearing, the court clerk had to ask whether that sentence was concurrent for both charges.

While the principles underlying concurrent and consecutive sentences and the totality principle warrant further comment and clarification by this Court, the attempted extortion charge deserved a full consideration. But, as noted above, this is not the case in which to resolve these issues.

For the foregoing reasons, we would allow the appeal and restore the sentence Judge Stewart imposed for the sexual interference conviction.”