IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         These are the reasons for sentence of Mr. M.R.R., who entered a guilty plea on two charges in Information 259140-1. The Crown proceeded by indictment. First, Mr. M.R.R. pled guilty to touching, directly or indirectly, for a sexual purpose, the body of the complainant, a person under the age of 16 years, during the period of September 1, 2018 to June 30, 2019. Second, Mr. M.R.R. pled guilty to inviting, counselling or inciting the complainant, a person under the age of 16 years, to touch, directly or indirectly with a part of his body, or with an object, for a sexual purpose, the body of Mr. M.R.R., during the period of September 1, 2018 to June 30, 2019.

[2]         There is a publication ban, which prohibits the publication of any information that could identify the complainant in this case. In particular, an order was made under s. 486. 4 (2) of the Criminal Code that information which may identify the person described in these reasons as the complainant must not be published, broadcasted, or transmitted in any manner. Accordingly, in these reasons, I refer to the complainant by his initials, R.B. I do so to preserve his privacy. Similarly, I have used initials for other persons’ names, including the offender’s, to preserve R.B.’s anonymity.

[3]         The main issue in this case is the determination of an appropriate sentence for Mr. M.R.R. for the two sexual offences before this Court. In order to arrive at an appropriate sentence for Mr. M.R.R., I must consider a number of factors, including: the circumstances of the offence, the circumstances of the offender, victim impact statements, and the principles of sentencing set out in the Criminal Code and any applicable case law.

[4]         The Crown and counsel for Mr. M.R.R. agree that a jail sentence is appropriate in the circumstances of these offences. However, they do not agree about the precise length of the jail sentence.

[5]         In these reasons for sentence, I review material and information placed before me during the course of the sentencing hearing. Some of the material and some of the information is graphic and sexually explicit. Much of the material and information placed before the Court is sensitive and extremely personal. In reviewing that information and material in these reasons, it is not my intent to make anyone, including the parties in this case, the victim and his family, or the general public who may come to know of it, uncomfortable. However, a review of the evidence regarding the two offences, the victim, and the accused is necessary to give proper context to my determination of a fit sentence.

[6]         Pursuant to s. 655 of the Criminal Code, Mr. M.R.R. admitted certain facts for the purpose of dispensing with the proof of those facts at the sentencing hearing. Below, I set out the Statement of Facts for Sentencing submitted at the sentencing hearing. It is not verbatim. In some portions, I have paraphrased.

[7]         Defence counsel, in the course of sentencing, reviewed Mr. M.R.R.’s circumstances, which were also set out in a Pre-Sentence Report completed in May 2021 and a Gladue Report.

[8]         The Pre-Sentence Report prepared for this Court notes that Mr. M.R.R. did not report any close family contacts, helping professionals or close associates. Accordingly, all the information included in the Pre-Sentence Report came from Mr. M.R.R. and from official records.

[9]         Mr. M.R.R. was born in the spring of [omitted for publication] in [omitted for publication], British Columbia. Initially he was in the care of his mother, but was placed in foster care as a toddler. His father regained custody of Mr. M.R.R. when he was eight years old. He did not see his mother again until he was an adult. Although he lived with his father in the Lower Mainland, he reported that his childhood was unstable. He was frequently “shuffled around” between the residences of various friends and family. He was often left to fend for himself. Mr. M.R.R. reported he was estranged from all his family members.

[10]      Mr. M.R.R. has been married three times and has children from two of his previous relationships. He does not have contact with any of his children, apart from his youngest daughter, who he had casual contact with recently in the Downtown Eastside.

[11]      Mr. M.R.R. reported that at the time of the offences in this case and years before, he had somewhat stable living arrangements. He moved around a lot but always had a roof over his head. For the past two or three years, he has been homeless, sleeping outside and often at the Strathcona tent city. He applied for housing and when the Pre-Sentence Report was written he was on a list for housing for people from the Strathcona tent city.

[12]      Mr. M.R.R. apparently did well in elementary school and secondary school. He attended the University of Victoria, but left one year later as he felt there was nothing there for him. He preferred to work with his hands.

[13]      As a child, Mr. M.R.R. began creating art. He was introduced to carving by his father who was a well-known carver. He developed a passion for art, and began a successful career carving various materials, crafting jewelry, creating sculptures, and other artistic endeavors. His artwork was his main source of income for most of his adult life. Recently, he has not created much art. He fixes and sells bicycles as his main source of income. Mr. M.R.R. reported he had never been on social assistance. However, he recently signed up for social assistance so that he could get on the BC Housing list. This would help to get him stable housing.

[14]      Mr. M.R.R. reported he was continuously exposed to physical, sexual, and psychological abuse throughout his youth. He disclosed the abuse to his family, but he felt they did not listen or believe him. He attended counselling to address the trauma, but did not feel listened to, and did not find it beneficial. Mr. M.R.R. has no physical conditions or injuries. He has never received a formal diagnosis for any mental illness. However, he expressed some feelings or experiences that, according to the probation officer who prepared the report, may indicate some underlying mental health issues, including trauma, that may require further assessments and treatment. Mr. M.R.R. reported long periods of feeling depressed or sad, especially because he could not see his children. At the time of the offences, Mr. M.R.R. described his mental health as stressed. He was feeling mentally cloudy and his life was in complete chaos. He felt he was not able to adequately express what he was going through to people, and people did not seem to understand. The probation officer noted that the issues he described may be substance induced rather than psychiatric/psychological problems, but they may warrant further assessment.

[15]      Mr. M.R.R. started drinking when he was eight years old. Alcohol became a problem for him almost instantly. He drank heavily throughout his teens and into adulthood. Approximately seven years ago, he quit drinking and became sober. Mr. M.R.R. reported he used crack cocaine in his 20s, but only after drinking. Cocaine was not his primary substance of choice – that was alcohol. Currently, Mr. M.R.R. is using crystal methamphetamine. He told the probation officer who prepared the report that he started using this drug in the months prior to his current offences. However, Mr. M.R.R. does not link his offending to his substance abuse. He reported that crystal meth has a medicinal effect on him, in that it calms his mind. He is currently using crystal meth daily, and estimates he probably uses half a gram per day. He does not use any other drugs.

[16]      Mr. M.R.R. has only one previous offence and that was mischief committed in May 1996. He received a suspended sentence and 12 months’ probation. He does not remember the details of that conviction apart from being intoxicated and making a bad decision. The Pre-Sentence Report states that Mr. M.R.R. does not appear to be enmeshed in a criminal lifestyle. “However, his current offences indicate that he groomed the victim, committed multiple acts over a period, and those acts were extremely serious, damaging, and traumatic for the victim. The seriousness of the current offences and the harm caused would indicate that the Subject would require a significant level of intervention to stop a repeat of this behaviour.”

[17]      The Pre-Sentence Report notes Mr. M.R.R. took full responsibility for the current offences and did not deny the offences. Mr. M.R.R. stated he was in mental and emotional turmoil at the time. His life was chaotic. He was feeling a lot of mental stress, and was not thinking clearly. He also acknowledged that his own experiences as a victim of sexual abuse played a role in his behaviour, but he did not feel this was an excuse for how he behaved. However, the Pre-Sentence Report writer notes that while Mr. M.R.R. expressed feelings of guilt and shame for his behaviour, it also appeared that he did not have a full appreciation or understanding of what he did or why he did it.

[18]      A full Gladue Report was prepared for sentencing pursuant to s. 718.2 (e) of the Criminal Code. The Gladue Report is not dated. The Gladue Report writer spoke with Mr. M.R.R., and the executive director of Kilala Lelum Health Centre. He also reviewed the 2015 Summary of the Final Report of the Truth and Reconciliation Commission of Canada.

[19]      The background provided in the Gladue Report is largely similar to the information provided in the Pre-Sentence Report. Mr. M.R.R. was born in [omitted for publication] in [omitted for publication]. He has four siblings, but did not know the ages of his siblings and was unsure of their current whereabouts.

[20]      Mr. M.R.R. has five children of his own; three of them are in their 20s and two of them are under the age of 11. He used to see his children but is prevented from doing so now. He did not feel comfortable sharing the names of his children or his previous partners, but said he had no relationship with any of them.

[21]      Although Mr. M.R.R. was born in [omitted for publication], he grew up largely in Vancouver and attended various schools in the Vancouver area. At one point, he and his father moved to the Balmoral Hotel. He was eight years old. Mr. M.R.R. told the Gladue Report writer that he saw many horrible things when he was young. He said that for some time he lived with one of his aunts; this was when he was around 9 or 10 years old.

[22]      While living with his aunt, Mr. M.R.R. described living in trauma and violence. He said that people would come into their room and try to touch his sister and his cousin, and “guys would come into my room and molest me.” He said this happened quite a bit, and on weekends it would happen more frequently.

[23]      Mr. M.R.R. also said there were other incidents of sexual assault when he was around the age of seven. His mother had left him in Victoria with a man who at one point assaulted him. Mr. M.R.R. said he never told anyone about it. Mr. M.R.R. described the abuse he experience to the Gladue Report writer as having continued until he was 14 years old. At that point, he moved to Vancouver on his own.

[24]      Mr. M.R.R. is well educated. He graduated from high school, and later attended the University of Victoria and the University of British Columbia for one semester each. He did not complete university because he dropped out to focus on his art. Mr. M.R.R. worked as a professional artist much of his life. His work is carried in many galleries. His pieces command a significant price. He has exhibited globally, including displays at the [omitted for publication] in [omitted for publication].

[25]      Mr. M.R.R. is a status [omitted for publication] and a member of the [omitted for publication] clan. He has an extremely close connection to his heritage and his community. However, recent events have led him to be disowned by his family and his community. He told the Gladue Report writer that he currently feels disconnected from his heritage. In the past, Mr. M.R.R. assumed the title of Chief through his matriarchal lineage. However, he did not continue in that role.

[26]      The Gladue Report writer dealt with the impact of colonization. Mr. M.R.R.’s family suffered directly from the impact of colonization, in particular from residential school involvement. Mr. M.R.R.’s parents and all his uncles and aunts attended residential school. He explained that they were sent to Alberta and Saskatchewan for residential school. His father and his uncles ran away several times in an attempt to get back to [omitted for publication]. Mr. M.R.R. was unable to provide specific information regarding his family’s attendance at residential school. However, his description of his family’s silence about their involvement in residential school is typical of the intergenerational trauma faced by family members of residential school survivors as described by the Truth and Reconciliation Commission of Canada.

[27]      Mr. M.R.R. expressed great sadness and regret about the offences. When he was discussing this subject with the Gladue Report writer, Mr. M.R.R. began to cry and became very upset. He said he felt terrible about the situation. Mr. M.R.R. wished to apologize for his actions and noted he was very interested in counselling. He said he had been trying to find someone to talk to for a long time. He also told the Gladue Report writer that he had been struggling with a significant mental health burden from his own childhood experiences and described wanting to break the cycle of abuse.

[28]      Mr. M.R.R. said he was eager to participate in all proposed interventions. He had previously attended a rehabilitation facility in Kitimat to address his alcohol misuse. This was sometime in 2007. Mr. M.R.R. expressed a strong desire to follow dedicated programming related to mental health development and counselling. Most recently, he attempted to contact the First Nations Health Authority to enrol in counselling. He was actively pursuing other avenues to seek assistance for his mental health issues through Kilala Lelum Health Centre and the Native Court Workers and Counselling Association of British Columbia.

[29]      The Gladue Report writer identified a number of systemic and background factors that have affected Indigenous people in Canada and that are apparent in Mr. M.R.R.’s circumstances:

[30]      The Gladue Report writer listed a number of programmes available both at the provincial and federal level. In closing his report, the Gladue Report writer noted that Mr. M.R.R. expressed a great deal of interest in repairing the harm he caused. He proposed creating and donating a piece of art to a social service in the downtown Vancouver area. He was also desirous of attending counselling for his mental health issues and narcotic usage. The executive director of Kilala Lelum Health Centre expressed an interest in assisting Mr. M.R.R. in facilitating a donation to her organization. However, she described some possible hesitation from the community due to the nature of the current events.

[31]      The Gladue Report writer also noted that due to the nature of the offences for which Mr. M.R.R. is being sentenced, a significant number of rehabilitation facilities would not admit him for treatment.

[32]      The British Columbia Court of Appeal in R. v. Berner, 2013 BCCA 188, addressed the role and scope of victim impact statements. It noted that victim impact statements play an important role in sentencing. Victim impact statements read in court bring home to the offender the consequences of his/her actions. Victim impact statements also make the sentencing judge aware of the damage the criminal offence caused the victim and, indirectly, the community in general. In R. v. Brewer, 2014 BCSC 1075, Romilly J., as he then was, reviewed the Berner decision and the legal principles regarding victim impact statements.

[33]      The decisions in Berner and Brewer, and the cases reviewed therein, acknowledge the importance of victim impact statements in the sentencing process. However, they also make it clear that sentencing hearings are not tripartite proceedings; rather they are a proceeding between society, which is represented by the Crown, and a convicted person, who is represented by legal counsel. Victim impact statements should not contain criticisms of the offender, assertions about facts of the offence, or recommendations about the severity of punishment. It is important that victim impact statements not contain material which may distract the judge from his/her proper consideration of the sentencing process before the court.

[34]      In summary, the case law acknowledges that while a victim impact statement provides a necessary voice in the sentencing hearing, which ought to be considered by the sentencing judge, the complainant or victim is not a party in the criminal trial and sentencing. Additionally, the cases stress that vengeance has no role in the sentencing process.

[35]      In this sentencing hearing, two written victim impact statements were given to this Court. There were no objections about the victim impact statements. However, I noted there were some redactions, which I assumed had been made by the Crown to comply with statutory requirements. One victim impact statement was from R.B.’s mother, who wished to give her statement viva voce during the course of the sentencing hearing. That statement was approximately 20 pages long. The other statement was from R.B., but it was given viva voce by his aunt. That statement, which also contained several drawings, was 16 pages long.

[36]      I will summarize the content of these two statements. However, I acknowledge that a summary does not capture all of the information provided in those statements. In coming to a decision on sentence, I have taken into account the statements themselves and not my summary of them.

[37]      R.B.’s mother expressed disbelief at the fact that she was writing a victim impact statement. She could not wrap her brain around how much the offences affected their lives. She acknowledged there was a cycle of abuse, which affected Indigenous children and Indigenous people in past decades. However, she had difficulty coming to grips with the fact that her son had been abused by a man who she loved and who she saw as her soulmate.

[38]      As part of the victim impact statement, R.B.’s mother reviewed aspects of her relationship with Mr. M.R.R. I will not review everything she said in this regard but will summarize. She said, for the first time in her life, Mr. M.R.R. made her feel safe, protected and loved. She opened up to him. He was the first Indigenous man she dated in 15 to 20 years because, growing up, she had avoided Indigenous men. She noted Mr. M.R.R. comforted her, and said he would protect her and her children. She commented on their discussions and her view of the relationship with Mr. M.R.R. She noted Mr. M.R.R. said that even if things did not work out between the two of them, he would always be there for R.B. This alone “melted” her heart. She saw Mr. M.R.R. as a great role model for R.B. and as his dad because R.B. had not had a dad until Mr. M.R.R. came along. She reviewed all the positive things about her relationship with Mr. M.R.R.

[39]      R.B.’s mother also reviewed all the good things Mr. M.R.R. had done for R.B. She said, even after they had broken up, she felt so happy and special. Mr. M.R.R. always came back saying how much he missed them. He also said that no matter what, he would always be there for them, that included R.B.

[40]      R.B.’s mother said when the police spoke to her, she was very scared because she was Mr. M.R.R.’s next of kin and thought something bad had happened to him. When they told her about her son, she cried for hours, thinking they were wrong. What they told her could not be true. Once she accepted what the police and R.B. told her, she cried and cried. She felt guilty for bringing Mr. M.R.R. into their lives. The situation almost made her want to kill herself. However, she could not leave R.B. to fend for himself. She was very scared about what would happen to R.B. if she was not there for him. She was concerned R.B. might commit suicide. She noted that before this she was overprotective and considered herself to be a “helicopter mom”. She thought her son would be the lucky one and would escape the cycle of sexual abuse.

[41]      R.B.’s mother detailed the steps she took to develop a safety plan and to get help for her son. She felt so ashamed of what the love of her life had done to her son. She found an organization that was there to provide help to get the best counselling for R.B. She noted that the help and support came from strangers, because she was not close to her family.

[42]      R.B.’s victim impact statement was read out in court by his aunt. Attached to the statement were some drawings that R.B. made.

[43]      In his victim impact statement, R.B. wrote that he could not trust others fully anymore. He always worries about his family and his friends. Certain things are a trigger for him now. He gets overwhelmed thinking this happens to others. He also finds it hard to meet new people. He fears for his security. He fears that when Mr. M.R.R. gets back, he will hurt him or his family.

[44]      R.B. wrote that when he was in kindergarten, Mr. M.R.R. was like a father figure to him. However, now R.B. dislikes him, particularly because of how he is now. R.B. said that at the time of the first offence, he felt confused and wondered whether this was normal or not. He said the more it happened the more he stopped looking up to Mr. M.R.R. He wrote that he wanted to be the opposite of Mr. M.R.R. He is more cautious with people now, knowing that people can turn against you. He is also anxious about the people around him.

[45]      R.B. dislikes the fact that now he needs to be watched all the time. He feels discomfort knowing he is being watched. He said he could not focus as much. He said Mr. M.R.R. was two different people. When Mr. M.R.R. was around his mom, Mr. M.R.R. constantly reassured her everything was okay and how much he loved them. However, when it was just R.B. and Mr. M.R.R., he would change and be sexually abusive.

[46]      R.B. said that since his mom found out, he has been concerned about her and about how she is handling it all. He is glad, because this situation gave her the chance to now charge her abusers and deal with her past. He said safety plans were put in place for him to help him start his healing. He said both he and his mom have counsellors.

[47]      R.B. said he was not suicidal but was concerned. He stayed quiet about the sexual abuse because he was concerned about what Mr. M.R.R. would do. In particular, he was concerned about what Mr. M.R.R. could do to the family.

[48]      R.B. said he is now more cautious about life in general. It is harder for him to trust people and their actions. He is sad, anxious, and confused. He is now always supervised and cannot even go to school or the store alone. He had regular counselling and was sent to treatment.

[49]      The Crown asks this Court to impose a jail sentence in the range of three to four years in the circumstances of this case. The Crown argues that when the Court imposes a sentence in this case, the primary consideration should be the objectives of denunciation and deterrence. The Crown relies on s. 718.01 of the Criminal Code in this regard, and points to the fact that Mr. M.R.R. abused a person under the age of 18 years.

[50]      The Crown submits there are three primary aggravating factors, namely, (a) R.B. was under 18 years old at the time the offences occurred; (b) Mr. M.R.R. was in a position of trust because he was essentially a father figure for R.B.; and (c) the offences had a significant impact on R.B. and his family. Additionally, the Crown argues that the offences occurred over a period of 9 months. There were at least three specific sexual acts that occurred. The Crown notes that anal intercourse and fellatio are extremely intrusive acts. Additionally, some of the acts were videotaped and photographed.

[51]      The Crown submits that the level of moral blameworthiness of Mr. M.R.R. is high. He seems to be well educated. From his past personal experiences, he ought to have known that the effect on R.B. was going to be significant. Additionally, there was a degree of grooming and that should be taken into account.

[52]      The Crown notes that s. 718.2 (d) directs courts to consider the circumstances of Aboriginal offenders. However, although the Crown urges this Court to consider the Gladue factors, the Crown submits that denunciation and deterrence should be the primary consideration in this case.

[53]      The Crown relied on several cases:

[54]      Counsel for Mr. M.R.R. submits that an appropriate sentence in his case is 18 months in jail followed by an 18-month probation order. Defence counsel reviewed the Pre-Sentence Report and the Gladue Report regarding Mr. M.R.R.’s personal circumstances. I have reviewed the Pre-Sentence Report and the Gladue Report at length in these reasons and will not repeat the contents of those reports, which were both reviewed in defence counsel’s closing submissions. However, I will summarize some of the background points made by defence counsel:

[55]      Counsel for Mr. M.R.R. provided more detailed background about the Indigenous villages at Haida Gwaii and the results and negative impact of colonization.

[56]      Much of defence counsel’s submissions were based on the Pre-Sentence Report and the Gladue Report. I have considered defence counsel’s submissions but have not repeated all of them in this summary.

[57]      An offence under s. 151 of the Criminal Code (sexual interference), carries a maximum sentence of 14 years imprisonment. Section 152 (invitation to sexual touching) also carries a maximum sentence of 14 years. However, there is no mandatory minimum, although one is provided in both sections, because in R. v. Schofield, 2019 BCCA 3, the British Columbia Court of Appeal concluded that minimum sentences for s. 151 offences were unconstitutional.

[58]      The purposes and principles of sentencing are set out in the Criminal Code. The British Columbia Court of Appeal in R. v. Bosco, 2016 BCCA 55, succinctly summarized those principles. In that case, at paragraph 29, the court wrote that the fundamental purpose of sentencing is to contribute to respect for the law and to maintain a just, peaceful and safe society. To meet this purpose, judges determine and impose “just sanctions” upon those convicted of committing crimes. Sanctions are just when they are tailored to the nature of the offence and the circumstances of the offender, bearing in mind a wide array of sentencing goals and principles. Their overarching purpose is to protect society and affirm its shared values.

[59]      Section 718.1 of the Criminal Code provides that any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is often referred to as the proportionality principle. In R. v. Ipeelee, 2012 SCC 13, the Supreme Court of Canada noted that the proportionality of a sentence is intimately tied to the fundamental purpose of sentencing, namely, the maintenance of a just, peaceful and safe society through the imposition of just sanctions. The Court noted that no matter what weight a sentencing judge places on the various objectives and other principles provided in the Criminal Code “the resulting sentence must respect the fundamental principle of proportionality.”

[60]      In this case, proportionality must be considered in the context of sexual offences committed against children. In a recent decision in R. v. Friesen, 2020 SCC 9, (which I will review later), the Supreme Court of Canada provided direction and guidance to sentencing judges about sentencing offenders for sexual offences committed against children.

[61]      In s. 718.2 of the Criminal Code, Parliament set out a list of other principles that a sentencing judge should take into account. Those principles include the following:

[62]      The Criminal Code and case law set out sentencing principles that apply in cases where the accused is convicted of child-related sexual offences.

[63]      Section 718.01 specifically provides that when a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, the court must give primary consideration to the objectives of denunciation and deterrence of such conduct.

[64]      Section 718.2 (a) (ii.1) provides that any sentence imposed on an offender should be increased or reduced to account for relevant aggravating or mitigating circumstances. Evidence that the offender abused a person under the age of 18 is deemed to be an aggravating factor.

[65]      Section 718.2 (a) (iii) also provides that evidence the offender, in committing the offence, abused a position of trust or authority in relation to the victim is also deemed an aggravating circumstance.

[66]      Section 718.2 (a) (iii.1) further provides that evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation is also deemed to be an aggravating circumstance.

[67]      Additionally, in September 2019, Parliament added a new section, namely, s. 718. 04 to the sentencing provisions of the Criminal Code. That section provides that when a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances, including because the person is Aboriginal and female, the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. That new section was not in place at the time the two offences before this Court were committed. Hence, is not directly applicable to this sentencing. However, it is notable that Parliament has provided specific new guidance to sentencing judges about offences that involve the abuse of a person who is vulnerable because of personal circumstances. More importantly, in C.C.C., Marchand J. followed Ker J. in R. v. Milne, 2020 BCSC 2101, and concluded that even though s. 718.04 was not in force at the time of C.C.C.’s offences, the principles it sets out nevertheless applied.

[68]      On April 2, 2020, the Supreme Court of Canada issued the Friesen decision, which is a significant decision about sentencing principles for sexual offences against children. The Friesen decision “is about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children.” The opening overview of the decision leaves no doubt about the importance of sentencing in such cases. In the opening paragraph, the Court noted that children are the future of our country and our communities. They are also some of the most vulnerable members in our society. They deserve to enjoy a childhood free of sexual violence. See paragraph 1.

[69]      The Court specifically stated at paragraph 5 that it wanted to:

[70]      In Friesen, the Court provided direction to sentencing judges on how to impose sentences for sexual crimes against children that fully reflect the harm done, as well as the wrongfulness of the conduct. The Court explicitly provided direction and guidance about the sentencing of offenders convicted of child-related sexual offences. This was done to ensure that sentences for sexual offences against children correspond to Parliament’s initiatives and the contemporary understanding of the profound harm that sexual violence causes to children.

[71]      The Court pointed out that protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. The Court further noted that sentencing is one of the most important and most delicate stages of the criminal justice process. Accordingly, it was important for the Court to provide guidance so that sentencing judges impose sentences that accurately reflect the nature of sexual offences against children and their impact on the victim. Given the facts of the case before the Court in Friesen, the guidance provided focused on sentencing principles for the offence of sexual interference and closely related offences such as invitation to sexual touching, sexual exploitation, incest and sexual assault. However, the Court noted that the principles it outlined in the decision are also relevant to sentencing for other sexual offences against children. See generally paragraphs 40 to 45.

[72]      In the course of the decision, the Court made a number of statements and observations about sentencing offenders convicted of child-related sexual offences. Below I set out some of the observations that are material to the sentencing hearing before me:

[73]      In Friesen, the Court also set out significant factors to consider when determining a fit sentence for sexual offences against children. It specifically noted that the factors it identified were not a checklist nor an exhaustive set of factors. Moreover, the factors the Court addressed were not meant to displace the specific lists of factors that provincial appellate courts have set out.

[74]      The specific factors identified by the Court in Friesen are the following:

[75]      In arriving at a fit sentence for Mr. M.R.R., it is my duty to take an individualized approach to sentencing. That individualized approach is set out in the Criminal Code. I have considered the purposes and principles of sentencing, the circumstances of the offence, the circumstances of the offender, and other statutory pre-requisites.

[76]      In addition, I have reviewed the cases provided by the Crown and Mr. M.R.R.’s counsel. I have also considered the comments about the sentencing process made by the British Columbia Court of Appeal in R. v. Carrillo, 2015 BCCA 192. That case is not at all on point with the case before me. However, I refer to it because of the points the court made about the sentencing process, which bear repeating:

[77]      The Supreme Court of Canada has also commented on the role of a sentencing judge in crafting a just and appropriate sentence in R. v. C.A.M., 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500. In that case, Chief Justice Lamer, as he then was, said at paragraph 91:

[78]      In Friesen, the Supreme Court of Canada noted the importance of sentencing and acknowledged that sentencing is one of the most important and most delicate stages of the criminal justice process. It is at this stage that the judge must weigh the wrongfulness of sexual violence and the harm that it causes, and give effect to both in imposing a sentence.

[79]      In these reasons for sentence, I have reviewed, in some detail, the principles of sentencing that apply to this case. Additionally, I have considered the recent case law brought to my attention by the Crown and counsel for Mr. M.R.R. In Friesen the Court declined to create a national starting point or a sentencing range for sexual offences against children. The Court also noted it has repeatedly held that sentencing ranges and starting points are guidelines – not hard and fast rules. The Court said that it was concerned about sentencing ranges based on precedents that appear to restrict a sentencing judge’s discretion.

[80]      The Court also stated that it was not its role to establish a range or to outline in which circumstances substantial sentences for sexual offences against children should be imposed. It went further and stated that it would not be appropriate for any court to set out binding or inflexible quantitative guidance. Nevertheless, the Court felt it was incumbent on it to provide the message that, “mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.”

[81]      I will now review the other cases relied on by the parties, not in search for a range or a starting point but to set the context for what is happening in similar cases in the courts in British Columbia.

[82]      The Crown relied on Friesen, which I have reviewed extensively. The Crown also relied on L.S.N. That case was an appeal by the Crown from a suspended sentence received by L.S.N. for sexual interference. The 37-year-old Indigenous offender had engaged in three instances of sexual touching of his 11-year-old stepdaughter. The offender had a previous conviction for sexual interference. He had failed to comply with substance abuse and sex offender counselling during his probation for that offence. He was regarded as being high risk to reoffend pursuant to an assessment and requiring sex offender treatment.

[83]      The British Columbia Court of Appeal issued the L.S.N. decision approximately one week after Friesen was published. The court found that the sentence imposed on L.S.N. was demonstrably unfit. It referred to the Friesen decision on several points. It noted that the suspended sentence imposed by the sentencing judge did not reconcile in a principled way the circumstances of the offender with the parity principle.

[84]      The court allowed the Crown’s appeal and imposed a sentence of two years less a day, a three-year probation, and a s. 161 order. In doing so, it noted that the sentence proposed by the Crown on the initial sentencing and again on the appeal was at the bottom end of the appropriate range. However, having regard to the Crown’s position on sentencing, the respondent’s devastating background circumstances, the exceptional circumstances identified by the sentencing judge, Gladue considerations, and the amount of time that had passed since the offence was committed, it was appropriate to impose a sentence of two years less a day.

[85]      In Nahanee, another decision of the British Columbia Court of Appeal issued in January 2021, the offender appealed from a sentence of eight years imprisonment for sexual assault. The offender had pled guilty to sexually assaulting one of his nieces on one occasion; he was 27 years old at the time and his niece was 15 years old. He also had another niece whom he assaulted on many occasions between 2010 and 2015. He was 19 years old and that niece was 13 years old when she moved in with his family. The sexual assaults on the second niece started several months thereafter. Both the victims and the offender were Indigenous. The court considered the Friesen decision. It dismissed the offender’s appeal. In doing so, it considered, among other points, the sentencing judge’s consideration of the Gladue principles in that case. It noted that it should be borne in mind that the application of the Gladue principles in the case must also have been tempered by consideration of the fact the victims were Indigenous children.

[86]      In Williams, a 40-year-old Indigenous offender was found guilty of sexual assault and sexual touching of a 16-year-old Indigenous victim. The sentencing judge imposed a three-year sentence for sexual interference, and a one-year sentence for communicating via telecommunication to facilitate the commission of a sexual offence. The sentences were to be served concurrently. The court directed a stay on the sexual assault conviction on the basis of the Kienapple principle. The sentencing judge referred to Friesen and noted that pre-Friesen precedents are of limited, if any assistance. The court found that the sentences imposed were not unfit.

[87]      In C.C.C., Marchand J., as he then was, sentenced an Indigenous offender he had found guilty of sexual assault and sexual interference of a vulnerable Indigenous girl. The victim had been placed with her maternal grandmother and the grandmother’s husband after her mother’s death. The court found that the offender was more than a step-grandparent to the complainant – he was a father figure. The court could not exactly say when the abuse of the victim started or the frequency of the abuse. The victim was 11 years old when the step-grandfather stopped abusing her. All of the sexual abuse occurred in the family home. The abuse included sexual touching and vaginal intercourse. This case is notable for what Marchand J. said at paragraph 2:

[88]      The accused at the time of sentencing was 65 years old. He was Indigenous. He had experienced his own set of harrowing childhood experiences. He had lived in foster homes and had been placed in a residential school for two years. It appears the offender had steady work, and at the time of the offences in question he worked as a carpenter and had done so for approximately 19 years. He had a criminal record. He submitted a number of reference letters from community members and his employer.

[89]      Marchand J. considered the interrelationship between the authorities and the provisions of the Criminal Code, which dictate that denunciation and deterrence are primary sentencing principles in sexual abuse of children, and in particular Indigenous children. However, the personal circumstances of the offender and s. 718.2 (e) could not be ignored. The Crown suggested a sentence of seven to nine years, whereas the offender suggested two years imprisonment and three years probation. The court considered a number of factors and a number of cases including Friesen. The sentencing judge noted that overall, the sentencing authorities supported a sentence in the mid-to-upper single digit penitentiary range.

[90]      The sentence Marchand J. imposed was five years. In imposing that sentence, he considered the case authorities and Criminal Code provisions which dictate that denunciation and deterrence are primary sentencing principles in cases of sexual abuse of vulnerable children, and in particular Indigenous girls. However, he also noted that he could not ignore the offender’s personal circumstances and the application of s. 718.2 (e).

[91]      In J.N.P., a sentencing which occurred shortly after Friesen was issued, the offender was convicted of sexual assault and sexual interference of a person under the age of 16 years, as well as invitation to sexual touching. The victim was 15 years old at the time of the offence. She was J.N.P.’s niece. The victim spent a great deal of time at J.N.P.’s home because she was friends with his eldest daughter. One evening, when J.N.P.’s partner was away, the victim and J.N.P. were alone in the living room. He took her to a basement room. The offender pulled off the victim’s shorts and underwear. She crossed her legs, but he pulled them apart and performed oral sex on her. He then pulled down his jeans, put her hand on his erect penis, and put it in her mouth. J.N.P. ejaculated into her mouth and then left and went upstairs.

[92]      The offender was 46 years old at the time of sentencing. He was Indigenous. He experienced problems with alcohol and drugs in the past. At the time of sentencing, he had abstained from both, it appears for about 10 years. He had a dated criminal record, which the court considered irrelevant. In that case the forensic psychiatrist was unable to give an opinion on J.N.P.’s risk of reoffending because of the lack of collateral information. The Crown had initially proposed a sentence of three years in jail. However, when the hearing resumed, after the Friesen case had been decided, the Crown submitted that a sentence in the six to seven year range was necessary.

[93]      The defence argued that since Friesen had not changed the national benchmark for sentencing, the law was unchanged, and submitted that a sentence of two years less a day and three years probation was appropriate. The sentencing judge reviewed Friesen and the directions contained therein. In particular, she noted that Friesen affirms that sentencing an Indigenous person for any sexual offences against children requires consideration of the systemic and background factors outlined in cases like Gladue and Ipeelee, which may have a mitigating effect. However, she noted that in Friesen the Court stated that when a child victim is Indigenous, a court may considered the heightened risk of sexual victimization faced by these children because of their indigeneity.

[94]      The sentencing judge concluded that the six to seven year sentence advanced by the Crown was clearly excessive. She also concluded that a provincial sentence, in the circumstances before her, was not appropriate. A penitentiary sentence was necessary. She sentenced the offender to three years for the offence of sexual interference of a person under the age of 16.

[95]      Counsel for Mr. M.R.R., as noted in my summary of the parties’ positions, relied on the principles of sentencing applicable to this case. She also relied on the Collin’s case. In that case the offender had pled guilty to one count of sexual interference. A second count of sexual assault was stayed pursuant to the Kienapple principle. The victim had gone swimming at a local aquatic centre. She was in the women’s change room changing out of her swimsuit. The offender entered the women’s change room. The victim was undressed and in one of the stalls. She told him so. She asked him to go away. He went into the stall ostensibly to assist her with her bra. Eventually, he lifted her leg from the floor, kissed her on her mouth, and digitally penetrated her vagina. The victim told him to stop several times. It appears he did not, but eventually left.

[96]      At the time of the offence the victim was 15 years old. She lived with an aunt. There was no direct evidence about her background, but the court concluded on the evidence that she was Indigenous.

[97]      At the time of sentencing, which was approximately three years after the offence, the offender was 35 years old. He worked as a logger in remote logging camps. His employer wrote a letter of support for him. The offender was not an Indigenous person. He was in foster care and was eventually placed with two of his siblings with foster parents who were Métis. They ultimately adopted him. The court was advised that the Government of Canada therefore considered the accused to be Métis. However, since neither counsel pressed the potential applicability of Gladue principles, the court had no evidence before it by way of a Gladue Report.

[98]      The court noted that even if the Gladue principles applied, that did not mean that Aboriginal offenders would necessarily receive shorter sentences. In particular, in cases involving serious offences where there is a pressing need for denunciation and deterrence, such as sexual assaults against children committed by adults in a position of trust, it is now settled law that absent extraordinary circumstances, both Aboriginal and non-Aboriginal offenders will generally receive sentences of imprisonment.

[99]      In Collins, the Crown’s position on sentence was one year incarceration followed by three years probation. The defence position on sentencing was for a six-month jail sentence. The court reviewed the Friesen decision. She noted that the offender took advantage of the trust vested in him by the victim. She noted that when this kind of essential trust is broken, the offender’s moral culpability is high and the harm caused to the victim profound. The court noted the law is clear that the need for denunciation, deterrence, and retributive punishment must take precedence. The court noted that sentencing of any offender for a sexual offence is an extremely difficult task. She considered the circumstances of the offence, the fact that the offender had betrayed the victim’s trust, and that he was morally blameworthy. She also considered his extremely difficult upbringing and the fact that the incident was a single isolated event, and that the offender did not have any relevant criminal record. She considered the support he had from his employer, his present partner, and a psychiatrist’s opinion that the offender was unlikely to reoffend. The sentence imposed was one year in jail and a three-year period of probation.

[100]   Turning to Mr. M.R.R.’s specific case, I find that there are a number of aggravating factors in this case:

[101]   While there are aggravating factors in this case, I must also consider any mitigating factors:

[102]   As Lyster J. noted in Collins, sentencing of any offender for a sexual offence is an extremely difficult task. Moreover, I acknowledge and adopt the comments made in the introduction of Marchand J.’s decision in C.C.C., namely, that the reasons for sentencing in this case are amongst the most painful for a sentencing judge to pronounce. On the one hand, there is a young, vulnerable Indigenous victim who has been profoundly traumatized and victimized by events that led to this sentencing. On the other hand, there is a middle-aged Indigenous offender who was also sexually abused as a child and, in addition to his own personal trauma, was subject to the impact of colonization, including the intergenerational legacy of residential schools. Mr. M.R.R. witnessed and experienced violence against children. He also experienced substance misuse including alcohol, cocaine, and crystal methamphetamine.

[103]   My duty as a sentencing judge is to impose a fit sentence that takes into account the fundamental purpose of sentencing and the fundamental principle of proportionality. I have considered the gravity of the offences and the degree of responsibility of the offender. I have taken into account the circumstances of the offence, the circumstances of the offender, and a number of other principles and factors enumerated in the Criminal Code and touched on in these reasons. Sentencing is an individualized process. Looking at other sentencing cases has been helpful, but the sentences imposed in other cases are not necessarily determinative of a fit sentence in this case.

[104]   Having considered the direction and guidance provided by the Supreme Court of Canada in Friesen, I do not hesitate in finding that the offences committed by Mr. M.R.R. against R.B. were serious and highly intrusive. As a consequence of those offences a young vulnerable victim has suffered significant consequential harm. There is no doubt that Mr. M.R.R.’s moral blameworthiness is high. I have considered his Indigenous background and the traumas he witnessed and suffered as a child. I have also considered the Gladue factors set out in the Gladue Report. However, in the circumstances of this case, Mr. M.R.R.’s moral blameworthiness cannot be reduced to any significant degree.

[105]   The most pressing sentencing objectives in this case, namely, deterrence and denunciation, are statutorily mandated and have been acknowledged in Friesen as being the primary objectives. I appreciate that Mr. M.R.R.’s rehabilitation cannot be ignored as an objective in crafting a fit sentence but, in the circumstances of this case, I do not find it to be a dominant objective.

[106]   I find that the sentence of 18 months in jail proposed by counsel for Mr. M.R.R., which would be served in a provincial correctional facility, is not appropriate. In reaching this conclusion I have considered the decision in Friesen, particularly the need to accurately reflect the wrongful sexual violence against children and the far-reaching and ongoing harm it causes to children, families, and society. The Court noted that 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.

[107]   I am satisfied that a penitentiary sentence is appropriate in the circumstances of this case. Accordingly, I sentence Mr. M.R.R. to a period of incarceration of three years on both counts of sexual interference to which he pled guilty. That three-year sentence on each count is to be served concurrently, one with the other. In other words, the total sentence he will serve for both offences will be three years. Mr. M.R.R. was initially to be sentenced on August 12, 2021. He failed to appear in court that day. He was subsequently arrested on a bench warrant and has been in custody since August 18, 2021. That means he has served 13 days straight time and 20 days credited. Therefore, 20 days will be deducted from his three-year sentence.

[108]   I also make the following ancillary orders: