• Lewis Waring

Flexible Sentencing Fits the Crime - Noah Curle

TRIGGER WARNING: this case deals with sexual offences against children


A judge is rarely ever able to please everyone, particularly when it comes to sentencing. The guilty party always wants the sentence reduced while the victim usually wants it increased. But what happens when the courts themselves disagree about the length of a sentence? This situation arose in R v Friesen (“Friesen”), a Manitoba case which reached the Supreme Court of Canada (“Court”) in 2020. The issue in Friesen was whether the trial judge had erred in principle to such a degree that he had imposed a sentence which was “demonstrably unfit”. As we will see, the decision of the Court in Friesen provides clarification on this problem while also shedding some light on the issue of sentence starting points.

The circumstances in Friesen are heartbreaking. Friesen and the victim’s mother met through an online dating site, and one night the mother invited Friesen back to her house. There they engaged in sexual intercourse before Friesen told the mother to bring her four-year-old daughter into the bedroom. At that point they subjected the child to sexual violence before her cries woke up the babysitter who came in and took the child out of the room. The mother instantly expressed regret about what had just happened but in response Friesen threatened to tell the babysitter that the mother had previously abused her one-year-old son if she did refused to bring her daughter back into the room. Friesen fled the residence shortly after when the babysitter confronted him about what had just happened.

Before the Provincial Court of Manitoba (“the PCM”), Friesen pled guilty to sexual interference with a child and attempted extortion. Although Friesen asked for a three-year sentence, the judge found that a six-year sentence was more appropriate given the crimes he had committed. This sentencing was based on aggravating factors involved in the case such as the child’s young age, the involvement of the mother, Friesen’s high risk of recidivism, and the court’s general duty to protect children from the threat of sexual violence.

In determining the appropriate sentence length, the trial judge also relied on the precedence set in R v Sidwell (“Sidwell”), a case heard by the Manitoba Court of Appeal (“the MCA”) which identified a four-to-five-year sentence as the starting point for major sexual assaults committed against a young person when the perpetrator is in a position of trust over the victim. Although Friesen was not in a position of trust, the judge found that the purpose behind the starting point in Sidwell - which sought to proportionally address both the harm to the child as well as the moral blameworthiness of the accused – was equally applicable. Accordingly, the starting point in Sidwell was applied, and, as a result, a six year sentence was imposed.


Sentencing overturned on appeal


This sentencing decision was successfully appealed by Friesen to the MCA which reduced his sentence down to four-and-a-half years. The MCA’s reason for reducing the sentence was that the trial judge had erred in principle when determining the six-year sentence. The error was in applying the four-to-five-year starting point from Sidwell because that “presumed the existence of a trust relationship but…no trust relationship between Friesen and the child [had been found].” The MCA concluded that the error in applying the wrong starting point resulted in the sentence of six years being demonstrably unfit.


The Court restores trial judge’s sentence


The MCA’s decision was appealed by the Crown to the Court. The issue before the Court was whether the MCA had erred in interfering with the sentence that the trial judge had imposed. The Court found that an appellate court may only interfere with a trial judge’s sentencing decision in two situations: when “the sentencing judge made an error in principle that had an impact on the sentence” and when “the sentence is demonstrably unfit.” If neither of these conditions are met, then the appellate court is unjustified in interfering with the sentencing handed down by the trial judge.

The MCA had argued that the sentencing judge had made an error in principle that impacted the sentence when he relied on the sentencing starting point laid out in Sidwell to form the basis for his judgement. However, the Court explicitly clarified that the MPC’s approach did not contain an error in principle. In fact, any “departure from or failure to refer to a range of sentence or starting point” cannot be treated as an error in principle because they are not meant to be rules set in stone, rather they are guidelines which aim to keep sentences in “accordance with the principles and objectives of sentencing.” As long as sentencing judges act in accordance with this aim, their decisions being made with the principles and objectives of sentencing in mind, there can be no error in principle when it comes to departing from the norm for sentence starting points.


Proportionality and parity



The principles and objectives governing sentencing can be generally broken down into two ideas: proportionality and parity. Proportionality is the fundamental principle that “sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” In deciding what is to be considered proportionate sentencing in cases of sexual offences against children, the Court outlined several factors to be taken into account: the risk of recidivism, whether there was an abuse of a position of trust or authority, the duration and frequency of the offence, the age of the victim, and the degree of physical interference – just to name a few. The Court unanimously agreed that the sentence was proportionate to the gravity of the offense given the age of the victim, the degree of physical interference, and the risk that Friesen would reoffend.

Parity is the second main objective of the sentencing guidelines. Parity is the idea that ”similar offenders who commit similar offences in similar circumstances should receive similar sentences.” It is ironic that the MCA found fault with the trial judge in applying the standard set out in Sidwell because parity is precisely the reason that he chose to use that standard. He believed that the ”aggravating factors were so serious as to place the case on par with the starting point the Manitoba Court of Appeal had set for major sexual assaults committed on a young person within a trust relationship.” By applying the Sidwell starting point, the trial judge was simply attempting to maintain parity between offences of similar gravity.


Demonstrable unfitness


Given that the sentencing decision by the trial judge was both proportionate and maintained parity, no error in principle was found. The Court then turned their attention to whether or not the sentence was demonstrably unfit. The Court of Appeal stated that the sentence was demonstrably unfit because it erred in applying the wrong starting point, however, since the Supreme Court had already established that applying a “wrong starting point” is not a principle upon which the Appellant Court can base their intervention, the point was found to be without merit. Furthermore, the Court established that compared to similar cases “the sentence was on the lenient end of the spectrum”. It was therefore clear that the sentence was not demonstrably unfit.

Since the sentencing judge made no error in principle which had an impact on the sentence and the sentence was not found to be demonstrably unfit, the Supreme Court found that the Court of Appeal was not justified in intervening with the length of the sentence and restored the original six year sentence that the trial judge had handed down.


Flexible sentencing to fit the crime


I think one of my main takeaways from this case is that it demonstrates the problematic nature of treating sentence starting points as “binding law”. Starting points and ranges for sentences are important guidelines which help align judicial decision-making with the principles and objectives that underlie appropriate sentencing. There must, however, also be room for sentencing judges to make individualized decisions based on the particular facts of the particular case in front of them. The heart-wrenching criminal cases which end up before a judge are often complex, and we do ourselves no favour by trying to oversimplify them down to a specific category which accords with a specific sentence. While guidelines are important, so is having the ability to tailor a punishment to fit the crime. By having an approach which allows judges to take into account all the factors – including the general guidelines – the Canadian legal system is better able to produce sentences which support the principles of proportionality and parity.

Check out the Robson Crim MLJ
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