Sentencing Principles for Sexual Offences Against Children: SCC’s Stance in R v Friesen
Content warning: The following article contains content regarding sexual offences against a child that may be triggering for some readers.
What elements should be considered when determining sentencing principles for sexual offences against children? Are there special factors that need to be considered for these morally reprehensible offences, or do offenders deserve more certainty in their sentencing? The Supreme Court of Canada’s [“SCC” or “Supreme Court”] unanimous decision in R v Friesen, 2020 SCC 9 [Friesen], outlined sentencing principles for sexual offences against children. The decision will allow sentencing judges to have greater scope and authority in establishing an appropriate sentence that takes into consideration the egregiousness of the offence, the grave impact on survivors, and any mitigating and aggravating factors.
A woman, who was also a mother to a four-year-old daughter, picked up Friesen, the accused, from a bar. She had met Friesen on an online dating site a few weeks prior. After picking him up, she brought him to her residence at about 1:00 AM on July 17, 2016 (Friesen, para 6). At the time, the mother’s four-year-old daughter, one-year-old son, and her friend — who was babysitting the children — were also at the residence (Friesen, para 6). After Friesen and the mother engaged in sexual activity in the mother’s bedroom, Friesen directed the mother to bring her four-year-old daughter into the room (Friesen, para 7). Friesen told the mother that he intended to perform sexual acts on her daughter, to which the mother obliged (Friesen, para 7).
Friesen was imposing sexual acts upon the daughter and the mother helped ensure the daughter was unable to escape the bedroom (Friesen, para 8). The mother’s friend, after waking up hearing the daughter’s screams and cries of distress, came in and removed the daughter from the room (Friesen, para 9). The mother then expressed her regret to Friesen regarding the sexual violence she allowed Friesen to inflict on her daughter. Friesen repeatedly demanded that the woman bring her daughter back into the bedroom so he could continue his sexual acts, threatening to tell the mother’s friend that she sexually assaulted her one-year-old son (Friesen, para 10-11). Friesen told her that if she brought the daughter back into the bedroom, Friesen would her retrieve one of her children, who was previously taken by Child and Family Services [“CFS”] (Friesen, para 11). When the mother’s friend returned to confront Friesen about the sexual violence that had occurred, Friesen fled the residence (Friesen, para 12).
Friesen was 29 years old at the time of the incident and had no prior criminal record (Friesen, para 13). Friesen’s personal history included a childhood of neglect and traumatic experiences of physical and sexual violence (Friesen, para 14). Friesen was also a ward of CFS and once he left CFS, he experienced homelessness and relied on sex work to survive (Friesen, para 14). Friesen pled guilty to sexual interference with the daughter pursuant to section 151 of the Criminal Code, RSC 1985, c C-46 [“Criminal Code”] and attempted extortion of the mother pursuant to section 346(1) (Friesen, para 13).
During the sentencing hearing, the Crown stated that the starting point for sentencing in this case should be four to five years of incarceration —the standard minimum of three years would be increased due to the young age of the child. The Crown sought a sentence of imprisonment of seven years “concurrent on both offences because of the aggravating factors” (R v Friesen, 2018 MBCA 69, para 6) [MBCA Judgement]. While Friesen agreed that the events were a “major sexual assault,” his stance for a reduced sentence of three years (reduced to two years for pre-sentence custody, followed by probation) was based on the argument that “there was no position of trust, and therefore, the four to five-year starting point (pursuant to R v Sidwell (KA), 2015 MBCA 56 [Sidwell]) did not apply.” The sentencing judge relied on Sidwell, however, to find that while Friesen was not in a position of trust with the child, the offence was a “major sexual assault” and thus, the starting point for sentencing was four to five years of incarceration (MBCA Judgement, para 7). The sentencing judge also indicated that there were mitigating and aggravating factors at play and imposed a six-year sentence concurrent on both charges as a result (MBCA Judgement, para 8).
Court of Appeal of Manitoba [“MBCA”]
Friesen raised two grounds of appeal: (1) that the sentencing judge applied the wrong starting point that would warrant four to five years of incarceration, and (2) that the sentencing judge further erred by “improperly weigh[ing] the relevant factors for sentencing” that increased the starting point of four to five years to six years (MBCA Judgement, para 8). Friesen also relied on analogous cases to establish a sentencing starting point closer to three years of incarceration (MBCA Judgement, para 8).
The MBCA concluded that the sentencing judge erred in principle when applying a starting point for sexual interference of four to five years, as that starting point required the ‘position of trust’ element that was not present in this case (MBCA Judgement, para 42). The Court of Appeal also indicated that the sentence the trial judge provided for attempted extortion was “excessive,” and the Court would therefore “sentence [Friesen] to four and one-half years for the offence of sexual interference and 18 months concurrent for the offence of attempted extortion” (MBCA Judgement, para 42).
SCC Majority Decision
The Crown raised two issues resulting from the MBCA decision. The first question was whether the MBCA erred by “interfering with the six-year sentence the sentencing judge imposed for the sexual interference conviction” (requiring an analysis of the standard of review, the starting point method, the principles governing consecutive sentences, and the principle of totality). The second issue was whether sentencing ranges for sexual offences against children are “still consistent with Parliamentary and judicial recognition of the severity of these crimes” (requiring a broad overview of how the principles of sentencing apply to sexual offences against children) (Friesen, paras 23-24).
The SCC allowed the appeal, restoring the sentence that the sentencing judge imposed for Friesen’s sexual interference conviction (Friesen, para 183).
Standard of Review
The SCC confirmed the standard of review for sentencing judges pursuant to R v Lacasse, 2015 SCC 64, indicating that “an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit (Lacasse, para 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (Lacasse, para 42)” (Friesen, para 26). Furthermore, the appellate court may apply their own sentencing analysis to determine a “fit” sentence (Lacasse, para 43). The SCC clarified that if the appellate court found an error in principle by the sentencing judge that impacted the sentence, the appellate court may “intervene and determine a fit sentence” (Friesen, para 28). However, in sentencing afresh, the Supreme Court indicated that the appellate court must defer to the sentencing judge and their findings of fact (including aggravating and mitigating factors), notwithstanding any facts that are affected by an error in principle (Friesen, para 28).
Sentencing Ranges and Starting Points
The SCC stated that the Supreme Court themselves have repeatedly held the notion that sentencing ranges and starting points are guidelines rather than “hard and fast rules” and the appellate courts cannot “treat the departure from or failure to refer to a range of sentence of starting point as an error in principle” (Friesen, para 37). The SCC further indicated that appellate courts also cannot intervene simply because the sentence differs from “the sentence that would have been reached had the range of sentence or starting point [had] been applied” (Friesen, para 37). The Supreme Court indicates the importance of the deferential standard of review and its purpose to ensure that “sentencing judges can individualize sentencing both in method and outcome,” such as to account for aggravating and mitigating factors or relevant systemic and background factors (Friesen, para 38).
In sum, the SCC concluded that the MBCA erred by focusing on whether the sentencing judge “chose the right starting point,” rather than if the sentencing judge “applied the principles of sentencing properly within exercise of his discretion” (Friesen, para 162). The SCC determined that the sentencing judge properly took into consideration the relevant aggravating and mitigating factors that supported his reasoning for the sentence (Friesen, paras 171-175).
Sentencing Principles for Sexual Offences Against Children
The SCC recognized that this case presents an opportunity to consider sentencing principles for sexual offences against children. Friesen allows the Supreme Court to provide an outline for sentencing judges to follow in cases regarding sexual offences against children, that will allow sentencing judges to impose sentences that more precisely take into consideration consequential factors such as the impact of the survivor (Friesen, para 43).
The Supreme Court expressed that these sentencing principles must reflect the contemporary understanding of sexual violence against children as a national issue. The SCC indicated that these principles can be determined through factors such as assessing the inherent wrongfulness, potential harm, actual harm, degree of responsibility of the offender, and proportionality without a specific victim. The SCC also recognized the importance of protecting children against sexual violence in the wider context of technologies that allow sexual offenders easier access to children (Friesen, paras 46-47). The Supreme Court affirmed that sentencing judges need to “properly understand the wrongfulness of sexual offences against children and the profound harm that they cause” to their personal autonomy, bodily integrity, sexual integrity, dignity, and sense of equality (Friesen, paras 50-51). The vicarious harm to parents, caregivers, family members, communities, and society at large, must be considered as a key factor by sentencing judges (Friesen, paras 62-64).
The SCC also highlighted the significance Parliament has placed on the “profound harm that sexual offences against children cause,” mandating continual increases in maximum sentences beginning in 1987 with Bill C-15, An Act to amend the Criminal Code and the Canada Evidence Act, RSC 1985, c 19 (3rd Supp), to the more current Tougher Penalties for Child Predators Act, SC 2015, c 23 (Friesen, paras 95-98). Parliament has also prioritized denunciation and deterrence for offences related to the abuse of children pursuant to section 718.01 of the Criminal Code, outlining “the need for courts to impose more severe sanctions for sexual offences against children” (Friesen, para 101). The SCC provided the following three points as guidance to courts to achieve Parliament’s legislative purposes, providing a “contemporary understanding” to the severe harms resulting from sexual violence against children:
- Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence;
- Sexual offences against children should generally be punished more severely than sexual offences against adults; and,
- Sexual interference with a child should not be treated as less serious than sexual assault of a child (Friesen, para 107).
Intersecting Inequalities and the Notion of Collective Care
The Friesen decision significantly demonstrates the SCC’s recognition of the importance of intersectionality and the effects of compounding marginalities that make certain groups more vulnerable to sexual violence and produce power imbalances that erase or complicate the possibility of informed consent. These groups predominantly include girls and young women, Indigenous children, racialized children, LGBTQ+ youth, children and youth in government care, children with disabilities, and those at the intersections of these identities. The SCC’s acknowledgement of intersecting identities as being an aggravating factor that sentencing judges may take into consideration as a principle of sentencing is a progressive feat.
It is important for laws and the courts’ application of them to include stricter penalties for sexual offences against children, which have a profound and multi-layered effect on children, their family, the community, and society at large. However, it is also important to acknowledge that intersecting social inequalities — the effects of colonialism, racism, sexism, poverty, disability, and other systemic inequalities — are often reflected in the hyper-criminalization of individuals from marginalized groups who experience them. This cycle is something that higher criminal sentences will not ultimately alleviate.
It is therefore imperative to address the structural reasons that sexual offences against children exist, and construct policies and legislation to eradicate the very marginalization that further perpetuates cycles of violence in general. This can include, for example, constructing community-oriented programs fostering the collective care of children. Friesen himself was a survivor of childhood neglect and sexual violence, and while that is not an excuse for his actions, it is part of the explanation. The law should look towards systemic explanations of sexual offences against children — and violent criminal offences in general — to ensure that these cycles of violence do not persist.