The Supreme Court of Canada’s decision in R v Friesen 2020 SCC 9 is long overdue. The frank recognition that Canadian sentences for sexual assaults, especially against children, are too lenient is a welcome and necessary development in Canadian criminal law.

It also raises uncomfortable questions about how these retributive notions can be reconciled with modern and liberal sentencing ideals that prioritize utilitarian principles like the de-incarceration of Indigenous peoples.

R v Friesen: A Brief Summary

For those unfamiliar with the case, R v Friesen dealt with a depraved sexual assault on a four-year-old child. A description of the circumstances is an unfortunate prerequisite to understanding the case:

[7] Friesen and the mother engaged in consensual sexual intercourse in the mother’s bedroom. The mother audio-recorded what happened next on her cellphone and the transcript of the recording was admitted at the sentencing hearing. Friesen told the mother to bring the child into the bedroom so that they could force their mouths onto her vagina and so that he could force his penis into her vagina. The mother brought the sleeping child up into the bedroom, removed her diaper, and laid her naked on the bed.

[8] The child began to cry and tried to flee the bedroom. Friesen and the mother prevented her from escaping. As the child was in distress and screaming, Friesen repeatedly directed the mother to force the child’s head down so that he could force his penis into her mouth.

[9] The child’s screams and cries awoke the mother’s friend. She entered the bedroom, observed the sexual violence, and told the child to “come here” (A.R., at p. 97). In response, Friesen said “bring her here” (p. 97). Instead, the mother’s friend removed the child from the room.

[10] With the child gone, Friesen told the mother to engage in sexual activities with him. The mother expressed regret about the violent assault on the child. In response, Friesen threatened to tell the mother’s friend that the mother had sexually abused her one-year-old son. When the mother said she did not want this to happen, he told her to “relax” and masturbate herself in front of him (p. 99).

[11] Friesen then threatened the mother, repeatedly telling her that unless she brought the child back, he would tell the mother’s friend that the mother had sexually abused her one-year-old son. Friesen told the mother that he intended to “fuck” and “rape” the child while “she’s crying” (pp. 100 and 102). In response, the mother repeatedly asked why Friesen needed to do “that stuff” (p. 100). When the mother raised concerns about getting one of her children back from Child and Family Services (“CFS”), Friesen indicated that he would get one of her children back for her if she returned the child to the bedroom.

R. v. Friesen

The accused had no record, was 29 years old at the time of the offence, and pled guilty to sexual interference and attempted extortion. His background was characterized by extreme deprivation, neglect, abuse, and exploitation. The Crown sought seven years. The Defence recommended three years. The trial judge sentenced him to six years.

The Manitoba Court of Appeal, identifying supposed errors made by the sentencing judge, reduced the accused’s sentence to four-and-one-half years.

The Supreme Court of Canada reversed the sentence reduction of the Manitoba Court of Appeal and re-imposed the six year sentence. The SCC took the opportunity to make powerful comments about the importance of increasing sentences for sexual assaults against children in Canada. In Paragraph 5, the court writes:

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.

R. v. Friesen

The Public Demands Higher Sentences

At the outset, I note that the legal community is virtually alone in believing that actions as depraved and disgusting as those committed by Friesen should attract a sentence of between three and seven years. I contend that the majority of non-lawyers among us strongly believe that the brutal sexual exploitation and assault of a four-year-old girl should attract extraordinarily lengthy prison sentences.

The actions of men like Friesen are among the worst things people are capable of.

And the idea that four-and-one-half years in a penitentiary sufficiently recognizes the inhumanity inherent in his actions is suspect. Even the six years imposed by the trial court and reinstated by the Supreme Court of Canada will allow Friesen to be eligible for day parole after serving only eighteen months in a cage.

While I recognize that not everyone is on the same page with respect to the proper role of punishment in modern society, I don’t think it’s controversial to suggest that there is a strong public consensus that those of us who visit unspeakable abuses upon innocent children should spend long chunks of time in prison. Not on probation, not on a conditional sentence order, not on parole, but actually locked up.

Parliament Tried It’s Best

The court finally recognized that, to reflect this overwhelming national consensus, Parliament has tried for decades to move the needle on child sexual assault sentencing.

At Paragraph 95 of the decision, the court writes:

Parliament has recognized the profound harm that sexual offences against children cause and has determined that sentences for such offences should increase to match Parliament’s view of their gravity. Parliament has expressed its will by increasing maximum sentences and by prioritizing denunciation and deterrence in sentencing for sexual offences against children.

R. v. Friesen

The court goes on to say at Paragraph 100 that, “[s]entencing judges and appellate courts need to give effect to Parliament’s clear and repeated signals to increase sentences imposed for these offences.”

Notwithstanding Parliament’s best efforts, the courts have actively frustrated these efforts through repeated decisions to strike down mandatory minimums for serious sexual offences involving children. Even where courts haven’t struck down legislation, they’ve moved so slowly to effect sentence increases that they may as well have not been moving at all.

As Manitoba pointed out in its Factum at Paragraph 50, judicial “starting points” for sex offences have remained static for decades. R. v. Sandercock, the Alberta Court of Appeal standard-bearer for sexual assault sentencing that, in practice, sets the starting point for sexual assault at three years was decided in 1985. In other words, sexual assault sentencing hasn’t significantly budged for 35 years.

This is not the result of sentencing judges properly balancing the interests of the public and the accused in the delicate process of sentencing. This is evidence of a deliberate and concerted effort to ignore Parliament’s reasonable attempt to bring sexual assault sentencing in line with modern notions of decency and respect for the bodily and psychological integrity of children, women, and men.

Reconciling Reconciliation

As positive as I think the observations made by the court in Friesen are, I’m profoundly skeptical that they will be properly applied by the lower courts in cases with Indigenous accused. This is because the Supreme Court of Canada has once again trapped sentencing judges halfway between Gladue and the sentencing principle of denunciation.

Indigenous Sexual Abuse

There is no question that Indigenous people in Canada, particularly Indigenous children, are at a wildly unacceptable risk of experiencing sexual violence. The court recognizes this reality at Paragraph 70:

Children who belong to groups that are marginalized are at a heightened risk of sexual violence that can perpetuate the disadvantage they already face. This is particularly true of Indigenous people, who experience childhood sexual violence at a disproportionate level (Statistics Canada, Victimization of Aboriginal people in Canada, 2014 (2016), at p. 10).

R. v. Friesen

What the court fails to point out is that, as with most crimes, the perpetrators of these offences tend to share the same ethnic background as their victims. In other words, the offenders tend to be Indigenous men.

When Indigenous men are sentenced for sexual crimes against other Indigenous people, the courts are obviously required to consider s. 718.2(e) and the principles set out in Gladue and similar cases. Overwhelmingly, the effect of this provision and these principles is to highlight the ways in which an offender might be less culpable for his actions and therefore deserve a lesser or different sentence.

At the same time, Friesen makes clear that the vulnerability of a victim is a central concern in sexual assault sentencing.

In cases where the victim is Indigenous and the offender is not, a sentencing judge’s job will be easier. In other cases, however, where the victim and the offender are Indigenous, a sentencing judge must balance two completely incompatible ideas.

First, he or she must recognize the Indigenous background of the offender and how it contributes to bringing him before the court. This consideration will often mitigate the sentence significantly.

Second, he or she must also consider the Indigenous background of the victim and how it rendered her particularly vulnerable to victimization. This consideration should usually serve as an aggravating factor.

I don’t think this is just another instance of sentencing judges having to balance and weigh competing interests. I suggest these are completely contradictory aims that cannot be reconciled with one another.

I also suspect that this dilemma may result in a profoundly uneven application of sexual assault sentencing principles for Indigenous offenders in Canada. Without some guidance regarding when to prioritize the background of the offender versus the vulnerability of the victim, sentencing judges are bound to get lost in the weeds.

Final Thoughts

R v Friesen is a breath of fresh, denunciatory air. It’s an overdue judicial recognition of the depravity and harm inherent in sexual offences.

But the case is not without its problems. Because the criminal justice system sweeps up so many Indigenous sexual offenders, the principles in Friesen are bound to run headlong into the principles found in 718.2(e) and R. v. Gladue.

It’s unfair of the Supreme Court of Canada to expect sentencing judges to untangle the mess they’ve created with respect to the sentencing of Indigenous sex offenders. It’s also unfair to both Indigenous victims and perpetrators of sexual violence, who are likely to see significant volatility and variation in the length of sentences handed down for these crimes.

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