• Lewis Waring

Sexual Interference Case has Broad Impact on Justice System - Elize Janzen

I wrote my first blog post on R v Friesen (“Friesen”) after having completed my midterms in December. I had just gotten better from a cold I had come down with and was completely overwhelmed from the experience of writing my first set of law school exams in the middle of a pandemic. The fact that we were 4 weeks deep into a COVID lockdown that would not be lifted until several weeks into 2021 only made things worse. At the time, I had planned to write about white collar crime, but my mental condition at the time could not cope with the research required. There are few high-profile, white-collar crimes in Manitoba. According to my research, none had made it into the superior courts of Manitoba in 2020 and the Supreme Court of Canada (“the Court”) had also not recently reviewed a case that matched the criteria outlined in our rubric.


Why am I telling you this? All of this led me to find the Friesen decision. At the time of writing my case brief, I did not realize just how influential a decision of the Court is and just how much weight each decision carries across the nation. In this piece, I wish to explore the impact the Court’s decisions have on lower courts in Canada and how lower courts use the tools the Court provides in the administration of justice.


A sexual interference case with a broad impact


Before jumping into my analysis, I first would like to give a brief summary of the case. Friesen was an appeal of the Crown that came from the Manitoba Court of Appeal (“MBCA”) in which the MBCA had reduced the sentence imposed at trial from six years to four-and-one-half years. The offence in question in Friesen was sexual interference and extortion. Friesen had met the mother of the four-year-old victim on a dating site. On the evening of the incident, he had met with the mother at a bar, and they drove back to her residence to have consensual intercourse. He then told her to bring her sleeping child to the bedroom and he proceeded to sexually violate the child. The child was taken by the mother’s friend, who was staying over to babysit. After the child was taken, Friesen tried to coerce the mother into bringing the child back by threatening her.


At trial, the judge in Friesen imposed a sentence of six years for sexual interference and a concurrent six-year sentence for attempted extortion. On appeal, the MBCA reduced the sentence to four-and-one-half years’ incarceration for the sexual interference and a concurrent sentence of eighteen months for the attempted extortion. On appeal from the MBCA, the Court unanimously reinstated the trial judges’ original sentence for sexual interference and did not address the sentence of the attempted extortion as it had not been appealed.


The Friesen decision, written by Wagner CJ and Rowe J, was published on April 2, 2020, and is forty-seven pages long. While trying to find a topic to write on for this post, I went back to check how Friesen has been treated since it has been published and, to my surprise, I found that, based on CanLII’s data, the decision has been treated by Canada’s courts over 530 times, Lexis Advance Quicklaw stated that there were over 510 citations, and, according to WestLaw Next, Friesen has been used in cases and decisions 458 times. These numbers prompted me to open up my first post to reevaluate Friesen’s ratio decidendi. Looking back, the ratio I had formulated was not complete since I had somehow missed the point that Friesen not only addressed sentencing with regard to sexual violence to alos addressed sentencing with regards to both children and adults as well as sentencing in general. So, what impact did Friesen have on sentencing in Canada?


A tough approach on sexual offences against children


The biggest impact of Friesen was first and foremost on the sentencing determination for sexual offences, particularly regarding children. In Friesen, the Court acknowledged Parliament’s efforts to come down hard on sexual offences against children in their Tougher Penalties for Child Predators Act, SC 2015, c 23, ss 2—4. This change has been reflected in the Canadian Encyclopedic Digest entry on sentencing:

“With respect to sentencing for sexual offences against children, upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence; sexual offenses against children should generally be punished more severely than sexual offenses against adults; and, sexual interference with a child should not be treated as less serious than sexual assault of a child.”


At the same time, the Court did not go on to explore questions of sentencing starting points and their role in determining a just and fit sentence in the circumstances. The Court in Friesen made the decision not to instruct on this point and decided to leave it for a future case that could better lend itself to the exploration and analysis of that particular topic.


The role of appellate courts


The impact of Friesen, however, went much further than the mere discussion of sentencing starting points. This decision set out a directive for appellate courts on their role in sentence appeals: (a) correcting errors, ensuring both that the principles of sentencing are correctly applied and that sentences are not demonstrably unfit, and (b) developing the law and providing guidance. Furthermore, the Court in Friesen stated that “it is not a further precondition to appellate intervention that the existing sentence is demonstrably unfit or falls outside the range of sentences imposed in the past.” This limited the intervention of appellate courts to situations in which “the sentencing judge has erred in principle; failed to consider a relevant factor; or erred in his or her consideration of an aggravating or mitigating factor; and it appears from the trial judge's decision that such an error had an impact on the sentence imposed.” With this decision, the Court recognized the competencies of the lower courts and the judges that daily preside over the hearings.


When I first saw the range of offences in which the Friesen decision was relied upon – murder charges, robberies, assault, battery, and so forth – I was honestly a bit stunned. I completed my undergrad degree in business, where the majority of my work experience lies, and came into law school with no prior training or experience in the area of law. As such, I had a hard time really understanding how cases with completely different fact patterns that are seemingly unrelated could still have a significant impact on a variety of cases. It should have been pretty obvious regarding Friesen, since that case addressed the sentencing factor and the appellate court’s role sentence appeals directly. Notwithstanding, I still somehow missed this fact. By the end of my first semester, I had still not understood the facts that a case could have more then one ratio decidendi and that anything and everything can and will be used by the lower courts to support their finding and strengthen their analysis.


The Court demonstrates its role


Friesen gave the Court the opportunity to give further guidance to appellate courts in its role as applying checks and balances to the administration of justice by trial judges. However, equally as important was the analysis that the Court undertook when clarifying Parliament’s position on sexual violence against children and adults. Basically, the Court hit two birds with one stone, managing to clarify the common law position on appellate courts as well as endorse Parliament's message on clamping down on sexual predators. At the same time, the Court did not go on to explore every possible sub-issue that could be relevant in the case but, instead, reserved them for future cases. Unlike the Supreme Court of the United States, the Court takes on a much more active role in the development of the common law and the instruction of its lower courts.


While not very technical, I hope that this post will help some other future student, coming from a background not related to law or english, realize the practical implications of judicial precedents, the relationship between the legislature and the judiciary, and how all levels of our judiciary interplay to administer justice in Canada. Before I revisited Frieseen and looked up its treatment, I was not able to conceptualize the ideas taught in the introductory classes of both criminal and constitutional law. However, through writing on Friesen, I finally put together the bigger picture of criminal law in Canada. My sincerest hope is that some other student will be able to read this post and also glean a little insight into the world of law like I did.

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