R. v. G.J.M., 2024 BCCA 82, MARCH 7, 2024.

FACTS:  The accused pleaded guilty to three counts of sexual interference and one count of possession of child pornography.  The circumstances were described by the British Columbia Court of Appeal in the following manner (at paragraphs 4 and 5):

The respondent is 11 years older than his half-sister, D.T.  He began sexually abusing her when he was approximately 18 years old and she was approximately seven years old.  The abuse continued until D.T. was approximately 13.  Although she could not say how often the respondent sexually abused her, D.T. estimated it initially occurred at least twice a month and decreased in frequency as she got older.  The abuse happened in the family home and the home of an aunt.

The sexual abuse included the respondent undressing D.T. and touching her vagina, forcing her to masturbate him and watch him masturbate, and forcing her to fellate him until he ejaculated in her mouth.  D.T. told the respondent that she did not want him to ejaculate, but he continued despite her objections and tried to normalize the abuse by telling her that he was doing the same thing with another family member.  At one point, D.T. saw the respondent recording her on his phone as she performed oral sex on him.

The trial judge imposed a period of two-years-less-a-day of imprisonment.  The Crown was granted leave to appeal form sentence.

HELD:  The appeal was allowed.  The Court of Appeal increased to sentence to five years of imprisonment.  The Court of Appeal concluded that “the judge made several errors in principle that materially affected the sentence. Specifically, and most significantly, she erred in finding the respondent’s moral blameworthiness was diminished by his long-standing depression, and placing him towards the lower end of the trust spectrum.  She also erred in treating the disruption of his family unit as a mitigating collateral consequence of his offending.  As a result, the judge skewed the balance of aggravating and mitigating factors unduly in favour of the respondent, and failed to give proper effect to his high moral blameworthiness and the profound harmfulness of his offences.  She erred further in failing to impose a sentence that reflected the unique harms caused by the child pornography offence, and misapprehended the evidence on how that offence came to light.  In cumulative consequence, she imposed a sentence that is demonstrably unfit” (at paragraph 50).

Moral Blameworthiness and Mental Health:

The Court of Appeal noted that in her reasons, the trial judge referred to Friesen and   stated “the Court noted that offenders who suffer from mental disabilities and cognitive impairments ‘will likely have reduced moral culpability’ for their sexual offending”.  The Court suggested that this “is not what the Court said.  Rather, the Court observed that an offender’s moral culpability will likely be attenuated by mental disabilities that impose serious cognitive limitations, citing Scofield and Hood as examples.  Those observations align with this Court’s guidance in Badhesa and Hagen.  They do not suggest the mere presence of a mental disability or disorder will likely have that effect” (at paragraph 54).

The Court of Appeal concluded that “[c]ontrary to the judge’s conclusion, Mr. Greig’s general observations [a psychologist] and heavily qualified hypotheses did not provide an evidentiary basis upon which a material “linkage between [the respondent’s] longstanding mental health struggles and his sexual offending” could reasonably be found on a balance of probabilities.  It follows that the judge erred in concluding otherwise, and finding the respondent’s long-standing depression diminished his moral blameworthiness” (at paragraph 60).

Position of Trust:

The Court of Appeal conclude d that the sentencing judge “erred in finding that he fell ‘towards the lower end of the ‘spectrum’ of trust relationships’ vis-à-vis D.T.  I agree with the Crown that this finding was palpably wrong and unreasonable” (at paragraph 63):

The respondent’s role as D.T.’s much older adult brother and regular caregiver placed him a position of high trust, and D.T. in a position of profound vulnerability and dependence.  Those respective positions enabled the respondent to exploit and victimize D.T. in her family home, where she should have been safest.  I agree with the Crown that the respondent’s multiple egregious breaches of the high trust position he occupied in relation to his much younger sister significantly increased the degree of his moral blameworthiness.

Family Disruption:

At paragraph 65:

The judge also erred by treating the disruption of the respondent’s family unit as a mitigating consequence of his offending.  Like his depression, his social isolation was an unfortunate personal circumstance. However, the respondent’s damaged family relationships were the entirely predictable result of his offences, which rendered his family members, particularly his mother, his secondary victims: Friesen at paras. 62–63.  In my view, the corresponding negative effect of their victimization on the respondent was not a mitigating consequence of his crimes.

Conclusion:

The Court of Appeal concluded that “based on the aggravating and mitigating features of this case, the respondent’s high moral blameworthiness, and the profound harmfulness of his offences, a term of four-and-one-half-years’ imprisonment is a fit sentence on the sexual interference counts. In addition, given the unique harms associated with the child pornography offence and the requirements of s. 718.3(7)(a) of the Criminal Code, a term of six months’ imprisonment consecutive on the possession of child pornography count is also fit” (at paragraph 78).