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On sentencing for sexual interference involving a 14-year-old, the court imposed four years’ imprisonment, entered a Kienapple stay on the sexual assault count, and made ancillary orders.
Applying Friesen, the court concluded that a sentence of 2 years custody followed by 3 years probation on the s.151 offence is proportionate and satisfies denunciation, deterrence and rehabilitation; the s.271 charge was stayed under Kienapple; aggravating and mitigating factors and a forensic risk assessment (below-average to average) justified the chosen sentence and ancillary orders including a 10-year firearm prohibition after release, DNA sample collection, 20-year SOIRA registration and 10-year s.161 prohibitions.
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The trial judge properly considered and weighed material inconsistencies, treated the alleged sex video as a collateral matter not requiring specific comment, provided adequate reasons for accepting the complainant's evidence and rejecting the appellant's account, did not misapprehend the evidence, applied even‑handed scrutiny, and her credibility findings attract deference; therefore no reversible error was shown and the appeal is dismissed.
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Sentencing decision for sexual assault with a publication ban, imposing a two-years-less-a-day conditional sentence order, three years’ probation, and ancillary orders.
Given the seriousness of repeated sexual interference against a seven‑year‑old in a position of trust, and after balancing primary objectives of denunciation and deterrence under s.718.01 with mitigating contextual factors from the IRCA and rehabilitative prospects, a global custodial sentence of 4.5 years (54 months) concurrent on the s.151 counts is fit and proper; sentences are concurrent because the offences formed a single criminal adventure; impose ancillary orders (primary designated‑offence DNA, 20‑year SOIRA, 10‑year firearms prohibition, 10‑year s.161 prohibitions with specified con…
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Applying Friesen and statutory sentencing principles, the court found the appropriate range for the s.151 offence involving EH to be 4–4.5 years and for KB to be 9–12 months, with a concurrent 3–6 month range for the s.733.1 breach; mandatory consecutive sentencing for different victims and for the breach produced an aggregate custodial sentence of 5 years 5 months (after a one-month remand credit), with ancillary orders (DNA, weapons prohibition, SOIRA, non-communication, publication ban) and waiver of victim surcharge due to undue hardship.
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On the whole of the evidence the Crown failed to prove the offences beyond a reasonable doubt because material inconsistencies, evidence placing some alleged incidents outside the indictment period, and the credible denial by the accused when weighed under the W.D. framework left a reasonable doubt; accordingly the accused is acquitted.
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The indictment amendment to narrow the end date to August 30, 2010 was permitted because the variance as to time was immaterial given the indictment was preferred within limitation; on the merits the Crown failed to prove the essential elements beyond a reasonable doubt because the trial judge accepted the accused's credible and reliable evidence and found the complainant's evidence to be unreliable, therefore the accused was acquitted.
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Although the normal custodial range for these child sexual offences was 4–6 years per Friesen, the sentencing judge gave significant weight to Gladue factors and the low assessed risk of reoffending and imposed a diminished, fit sentence of 3 years imprisonment in a federal institution; ancillary orders were granted (weapons prohibition, DNA, SOIRA) and the s.161(1) prohibition order was refused as unnecessary in the unique circumstances; the sexual assault conviction was stayed pursuant to the rule against multiple convictions and the victim surcharge was waived.
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The Court of Appeal upheld the finding that taking a child’s hand to the accused’s genitals could amount to invitation to sexual touching, but stayed that count under Kienapple.
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