Sexual offences against children attract harsher sentences than offences committed against adults. This fact was reinforced by the Friesen case, during which the Supreme Court of Canada called for tougher punishment for sexual violence against children.
Table of content:
- History of child abuse ruling in Canada – The Friesen Case
- The Court of Appeal
- The Supreme Court
- Future cases and Canada’s Law on Sexual Abuse
- Defending allegations of child abuse- what happens when you are charged with sex assault
- Speak to lawyers at Mickelson & Whysall as soon as the allegation is made
- Get the lawyers to investigate and present the evidence
- Develop a strategy and stay calm
- Criminal Defence Cases handled by the Vancouver Criminal Lawyer team
- Client charged with sexual assault of the girlfriend’s daughter
- Client charged with Sexual Assault of his daughter
- Contact details
History of child abuse ruling in Canada – The Friesen Case
The facts, in brief, are that Justyn Friesen met a woman on an online dating website in 2016.
He was invited to the woman’s house for consensual intercourse, during which he sexually assaulted her four-year-old daughter with the woman’s assistance. The woman’s friend, who was babysitting, woke up and heard what was happening. She removed the daughter from the room, but Friesen demanded the girl’s return, saying he would accuse the mother of abusing her one-year-old son if his request wasn’t met. He fled the residence shortly afterwards.
Friesen pleaded guilty to sexual interference and attempted extortion.
In 2017, the trial judge sentenced him to six years in prison for both offences concurrently. This was based on the sentencing guidelines for major sexual assaults committed by adults against young persons while in a position of trust or authority.
The starting point for such offences is four to five years’ imprisonment.
There were further aggravating factors at play, leading the judge to decide on a six-year sentence.
1. The Court of Appeal
Friesen appealed to the Court of Appeal of Manitoba.
There were two grounds for his appeal.
- Firstly, the sentencing judge was wrong to use the starting point of four to five years as he had not been in a position of trust or authority.
- Secondly, the sentencing judge had improperly weighed the aggravating factors that increased the sentence to six years. Friesen’s defence had always argued that the starting point for sentencing should be three years, as there was no position of trust.
The Court of Appeal agreed that the sentencing judge had made a mistake, stating that the position of trust element was not present in this case. It also said that the sentence for the attempted extortion was excessive. Friesen’s sentence was lowered to four and a half years.
2. The Supreme Court
The Crown then appealed this decision, taking the case to the Supreme Court of Canada (SCC). The Crown asked the SCC to consider whether the Court of Appeal should have interfered with the original sentence. It also questioned whether current sentencing ranges are consistent with the gravity of child sexual offences.
The SCC allowed the appeal and returned a unanimous decision in 2020. The details were:
- It restored the six-year sentence that had been originally imposed.
- It concluded that the Court of Appeal had been mistaken to focus on whether the sentencing judge chose the right starting point. Instead, the question was whether the sentencing judge “applied the principles of sentencing properly within the exercise of his discretion”.
The SCC found that the sentencing judge had acted in accordance with the law, which allows the court to depart from the guidelines to determine a “fit” sentence.
This was appropriate in this case, given society’s greater understanding of the harm inflicted on children by sex offenders.
The court said:
Courts are justified in departing from dated precedents that do not reflect society’s current awareness of the impact of sexual violence on children in imposing a fit sentence.
Future cases and Canada’s Law on Sexual Abuse
The SCC used the Friesen case as an opportunity to encourage harsher sentences for child sex offenders. Sentencing judges have been given an outline to follow in future cases where sexual offences have been committed against a child. This will allow judges to impose sentences that reflect various factors, including the impact on the victim.
Defending allegations of child abuse – what happens when you are charged with sex assault
Given the Supreme Court of Canada’s ruling, those convicted of sex offences against children can expect to face longer prison sentences. This makes it all the more important to get early legal representation if you face allegations of child abuse.
Even if you intend to plead guilty, there may be mitigating factors that need to be brought to the court’s attention. These may persuade the sentencing judge to show leniency.
If you deny the allegations, then it is vital to get to the truth of the matter. Although you are innocent until proven guilty, it is still necessary to establish your innocence. This requires a careful examination of the evidence, the motivation behind the allegations, and the context. We can scrutinize the reliability of the allegations and the evidence, using our findings to formulate a solid defence.
Speak to lawyers at Mickelson & Whysall as soon as the allegation is made
If you have been accused of child abuse, you need to ask a criminal lawyer to help you. Child abuse is a serious charge. Being found guilty of such an offence can have serious implications for the rest of your life.
Criminal lawyers understand the defence strategies that can be used in sexual assault cases.
Do not talk to the police
If the police want to question you about allegations of sexual assault, you should ask to speak to a lawyer first. You have a legal right to free police station representation. Some people think that talking to the police immediately will help their case. This is not necessarily true. Anything you say could be used against you or even misinterpreted. A lawyer can protect your position from the word go. If the police try to pressure you into talking to them, you should remain firm: politely decline the request and say that you want to speak to a lawyer first.
Get the lawyers to investigate and present the evidence
Your lawyer can then investigate the allegations. If the allegations are false, then your lawyer can gather the necessary evidence to prove your innocence. If this is done in the early stages, it may result in the charges being dropped, preventing the case from going all the way to trial. Although no one likes to think of a child as a liar, they can be influenced by other adults in their lives to make false accusations. A child may also say something they don’t really mean to get attention or attain a certain outcome, such as living with their other parent.
A lawyer knows what evidence is needed to prove your defence. This includes careful examination of witness testimony, interviews with the child, and the use of experts. The context of the allegations can also be essential. If they are made in the midst of a separation, divorce or custody battle, then the veracity of the claim should be challenged. If you have an ex-spouse who is vindictive or mentally unwell, then this may also explain why such terrible allegations have been made. All of these things need to be investigated and explained to the authorities.
Other articles that can help in your situation:
- What Happens When You Are Charged with Sexual Assault?
- Using Sexual History to Defend Your Sexual Assault Case
- Definition of Sexual Assault and Consent in Canada
- Using Text Messages & Social Media to Defend Your Sexual Assault Case
- Sexual Assault & The Age of Consent
- How to Defend a Sexual Assault Charge
Develop strategy and stay calm
When falsely accused of child abuse, you might feel enraged and express your anger about the unfair treatment. Sadly, false allegations of sexual abuse can and do happen. A child might have any number of motivating factors, such as a desire to live with the other parent, or even complying with instructions given by the other parent who is intent on spreading malicious falsehoods.
One of the strategies is to determine and present the child’s motive to make a false allegation of sexual abuse. The motive for a false allegation must be discovered during the defence investigation and presented to the investigating authorities.
You should allow your lawyer to present your defence on your behalf. Naturally, you will want to lash out against anyone who accuses you of such a heinous crime as child abuse. However, this does not help your case. In fact, it could actually fuel the prosecution’s case against you. So, stay calm, create a strategy with your defence lawyer and let them do the work for you.
Criminal Defence Cases handled by the Vancouver Criminal Lawyer team
1. Client charged with sexual assault of the girlfriend’s daughter
- Defence attorney: Joel Whysal
- The case details: The accused client was arrested and charged with sexual assault of the daughter of a long-term girlfriend. Accused of an on-again-off-again relationship with the mother of a daughter.
- The case result: Stay of Proceedings. After cross-examination of a daughter, Crown Counsel stopped proceedings mid-trial, in light of material inconsistencies in testimony, and charges against the accused stayed.
2. Client charged with Sexual Assault of his daughter
- Defence attorney: Brian Mickelson
- The case details: The accused was charged with sexually assaulting his young daughter. A private polygraph test was conducted which the accused passed. This information was forwarded to Crown Counsel and the police.
- The case result: Charges were dropped.
Contact us now
If you have been accused of committing sexual offences against a child (or children) please contact us at Mickelson & Whysall Law Corporation. We can represent you throughout the proceedings.