- Lewis Waring
Sentencing Sexual Offences: Punishment, Parity, and Trust - Anonymous
In R v Friesen (“Friesen”), a four-year-old girl became the victim of sexual abuse. In late June of 2016, the girl’s mother met Justyn Kyle Napoleon Friesen on a dating website. The two arranged to meet the following month in July of 2016. While Friesen was at a bar that night, the mother decided she would pick him up from the bar and bring him to her home. The four-year-old girl and her one-year-old brother were left at home with the babysitter, a friend of the mother’s.
Once the mother and Friesen arrived at her home, they engaged in consensual sex. Friesen proposed to the mother to bring the four-year-old girl up to the bedroom in order to sexually abuse her. This proposal is heard in the audio recording from the mother’s cell phone. The mother proceeded to bring the four-year-old to the bedroom where the abuse ensued. The babysitter heard the screams and cries of the child, “she entered the bedroom, observed the sexual violence, and told the child to 'come here.'”
Upon this incident, Friesen began to make threats to the mother that he would tell the babysitter about the time the mother sexually abused her one-year-old son unless the mother brought the girl back so that Friesen could assault her again.
Friesen exited the residence when the babysitter told him that he committed a sexual abuse against the four-year-old girl.
For the Provincial Court of Manitoba (“the PCM”), Friesen described the actions he committed that night towards the four-year-old little girl as a result of his own personal experience with sexual and physical abuse in his childhood. He explained that “when he left CFS [Child and Family Services] care, he became homeless and sold sex on the street to survive. He lacked a supportive social circle and experienced depression and anxiety. At the sentencing hearing, he stated he was sorry and had remorse”. Friesen proposed that a sentence of three years in jail was the appropriate punishment considering his troubled past.
Judge Stewart of the Provincial Court disagreed with Friesen’s suggestion. Instead, the judge “imposed a six-year sentence for sexual interference and a concurrent six-year sentence for attempted extortion.” The PCM acknowledged the unfortunate set of events that had occurred in Friesen’s childhood as a result of being in foster care but ultimately concluded that the violence surrounding the current events and Friesen’s actions towards the four-year-old girl were horrific and Friesen’s “lack of insight” about the trauma induced on the child “was frightening for ongoing risk into the future.” The PCM noted that Friesen’s proposal of a three-year sentence was inappropriate considering that in trust relationships “sexual assault committed on a young person” carries a sentence of four-to-five-years.
On appeal, the Manitoba Court of Appeal (“the MCA”) pointed out that the PCM erred in not accepting Friesen’s proposal of a three-year sentence because there had been no relationship of trust between Friesen and the child. Despite this fact, the PCM still took as a starting point a sentence that typically applies to cases where there is an established relationship of trust between the sexual abuser and the victim.
As a result, the MCA sentenced Friesen to four-and-a-half-years in jail for the sexual assault to the young child with an eighteen-month jail sentence for the extortion conviction. The Crown appealed.
At the Supreme Court of Canada (“the Court”), the Crown looked at two main issues:
a.) whether “sentencing ranges for sexual offence against children [are] still consistent with Parliamentary and judicial recognition of the severity of these crimes?” and
b.) whether the “Manitoba Court of Appeal erred by interfering with the six-year sentence the sentencing judge imposed for the sexual interference conviction?”
In working through its analysis here, the Court looked at section 718 of the Criminal Code, which states the following:
“The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
a) to denounce unlawful conduct and the harm done to the victims or to the community that is caused by unlawful conduct;
b) to deter the offender and other persons from committing offences;
c) to separate offenders from society, where necessary;
d) to assist in rehabilitating offenders
e) to provide reparations for harm done to victims or to the community; and
f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to the victims or to the community.”
This section of the Criminal Code is to be read with sections 718.1 and 718.2(b), which require sentencing proportionate to the gravity of the offence and parity of a sentence with other sentences. The principle of parity stands for the proposition that “similar offenders who commit similar offences in similar circumstances should receive similar sentences”. Here, the MCA found that the PCM had erred in sentencing Friesen similarly to an offender found to have been in a trust
relationship with the victim when the trial court had already determined in the same analysis that Friesen was not in a relationship of trust with the four-year-old victim.
Children are considered to be one of the most vulnerable groups in society. Young children in particular who have not yet reached the age of maturity may find themselves unprotected by the law in cases where a crime is being committed towards them. Friesen presented the Court with the opportunity “to consider the sentencing principles for sexual offences against children”.
The opportunity here included the actualization of a sentencing scheme that better reflects the negative impact the sexual offence has on the victim. Some of the impacts to victim children to whom a sexual offence has been committed include: damage to the relationship between child and family and child and community, the disproportionate affects sexual abuse has on girls and how it relates to their future and women, and disproportionate affect to other vulnerable groups such as the Indigenous people and people with disability. In essence, sentencing should reflect the current “understanding of sexual violence against children” in particular, paying attention to the actual harm that is done to the vulnerable child or children.
Parliament also recognized that sentencing for offences related to the sexual abuse of children requires an approach which encompasses the notion of the “relative severity of each crime”. This means that Parliament believes that increasing the maximum sentence to reflect the gravity of the harm for sexual offences committed
against children is a pathway for sexual crimes against children “to be punished more harshly”.
In Friesen, we see the Court taking the opportunity to analyze the rules around sentencing in the Criminal Code and espousing the belief that the rule of sentencing should be proportionate to the gravity of the offence and the principle of parity affect sentencing for sexual offences committed against children. Here, the Court held that the PCM’s decision was to be restored.