Appeal dismissed. The appellant was convicted of sexual interference and sought to appeal his nine month custodial sentence. The Court found that the sentencing judge clearly considered a number of mitigating factors, including the appellant’s history as an Indigenous person in order to arrive at a sentence that reflected significant restraint. The Court notes that a victim’s willing participation is not an indication that sexual violence has not occurred as sexual offences against children are inherently violent.
The 27-year-old Indigenous appellant, Mr. Alfred, was convicted of sexual interference and sentenced to nine months imprisonment followed by 24 months of probation. Mr. Alfred attempted to appeal his conviction, but it was dismissed. He now comes before the Court to appeal his sentence. In doing this, the appellant argues that the sentencing judge failed to give effect to section 718.2 of the Criminal Code which sets out the principles of restraint and the need to consider the least restrictive sentence, particularly in the case of an Indigenous offender. The appellant held that the appropriate sentence here would be a suspended sentence, as opposed to the custodial sentence he was given.
In considering Mr. Alfred’s circumstances, the Court had the benefit of referring to a presentence report which also commented on Gladue factors. The report revealed that Mr. Alfred himself was a victim of sexual abuse as a child, was exposed to alcohol abuse, and suffered some dislocation from his family. Having reviewed these circumstances, the Court found that the sentencing judge had adequately considered the appellant’s history as an Indigenous person.
In considering the appellant’s argument that the sentencing judge arrived at a sentence that did not reflect proper restraint, the Court considered the principle of proportionality. Specifically, the Court sought to ensure that the sentence imposed on Mr. Alfred reflected his moral culpability and the gravity of the offence. With regard to this, the appellant submits that the complainant wanted her relationship with the appellant to happen, and that she was not pressured to enter into sexual relations with Mr. Alfred. The appellant submits that the victim’s willingness is a factor differentiating this case from cases of predatory sexual violence against children. The appellant argues that this “willingness” by the victim reduces his moral blame worthiness and is highly relevant to proportionality in this case since indications of predatory sexual violence against children were not present. The appellant holds that this justifies a reduced sentence.
The Court rejects this argument on the basis that it is inconsistent with case law that states that sexual offences against children are inherently exploitative and require higher sentences. (R v Friesen, 2020 SCC 9). The Court concluded that the sentencing judge considered all relevant factors, including the appellant’s history as an Indigenous person, and arrived at a sentence that reflected significant restraint. The Court found that the reasons for the sentence reflect no error in principle nor was the sentence demonstrably unfit.