R. v. Sheppard

Reasons for Judgment — Wagner C.J. (Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ. concurring)

I. Overview

1Sexual offences against children are among the most profoundly immoral acts an individual can commit. Historical sexual offences against children are no less grave, and demand no less accountability, than ones committed today. This appeal provides an opportunity to clarify the applicability of the principles set out in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, to historical sexual offences against children and to reaffirm the standard of appellate review set out in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.

2The respondent, Paul Sheppard, was convicted by a jury of sexual interference and invitation to sexual touching in respect of the complainant. The crimes occurred in 1993 and 1994, when the respondent was a teacher at a boarding school where the complainant was enrolled. The sentencing judge sentenced the respondent to six years’ incarceration on each count, to be served concurrently.

3The respondent appealed his sentence. The majority in the court below allowed the appeal and varied his sentence from 6 years’ incarceration to 3 years and 11 months’ incarceration. The court intervened on two main bases: first, the sentencing judge’s reasons for her factual findings were insufficient, and second, she erred by declining to consider pre-Friesen sentencing jurisprudence.

4The Crown appealed the sentence reduction to this Court. Following the hearing, this Court delivered its judgment orally from the bench. We unanimously allowed the appeal, restored the original sentence of six years’ incarceration, and ordered the respondent to surrender himself to the proper authorities to serve the remainder of his custodial sentence. We also unanimously allowed the respondent’s motion to adduce new evidence. These are our reasons.

II. Background

5During the 1993-94 school year, the respondent was a teacher and “duty master” to the grade 7 students at an all-male boarding school in Alberta. The complainant was a grade 7 student at the school that year.

6At that time, the school embraced corporal punishment as a means for disciplining students. The respondent administered a form of corporal punishment to the complainant and other students called “swatting”, which entailed striking their buttocks with a wooden rod. This punishment was administered in the duty master’s room.

7The complainant testified that they were bullied by other students, which included verbal and physical abuse (A.R., vol. II, at pp. 64 and 194). They recounted that the respondent showed a personal interest in them and assumed a paternal role in their life (p. 73; 2021 ABQB 705, 33 Alta. L.R. (7th) 254, at para. 40). Specifically, the complainant testified that the respondent confronted them about their personal hygiene and watched them shower on several occasions (A.R., vol. II, at pp. 66-67).

8The complainant testified that in October of 1993, after administering a “swatting” to the complainant, the respondent directed them to remove their pants and underwear and touched the complainant’s penis (pp. 64-65). The complainant’s evidence was that every couple of times they were “swatted” sexual abuse was involved (p. 68). They stated that there were between 10 and 12 instances of such abuse, including: the respondent teaching the complainant to masturbate; the respondent masturbating the complainant; the respondent asking the complainant to masturbate the respondent; the respondent putting his hands on the complainant’s penis and moving the complainant’s hand onto the respondent’s penis; and the respondent asking the complainant to kiss the respondent’s penis (pp. 68-72).

9The respondent testified in his defence and denied all allegations.

10After a trial by judge and jury, the respondent was found guilty of all three counts on the indictment: sexual interference, invitation to sexual touching, and sexual assault. The conviction for sexual assault was stayed in accordance with the Kienapple principle.

III. Judicial History

A. Sentencing Decision, Court of Queen’s Bench of Alberta, 2021 ABQB 705, 33 Alta. L.R. (7th) 254 (Yungwirth J.)

11Following the guilty verdict, the Crown sought a sentence of six to eight years’ imprisonment, while the respondent sought a sentence of two years’ imprisonment followed by three years’ probation. The sentencing judge sentenced the respondent to a six-year prison term for the offences of sexual interference and invitation to sexual touching to be served concurrently.

12The sentencing judge began her reasons for sentence by setting out the facts that she was satisfied were proven beyond a reasonable doubt at trial. Those facts included that the respondent sexually violated the complainant approximately 10 times. She found that the violations included the following (at para. 13):

13On the basis of these findings, the sentencing judge identified the relevant statutory aggravating factors: the complainant was under 18 years of age, the respondent abused a position of trust or authority, and the offences had a significant impact on the complainant. Another aggravating factor was the duration and frequency of the sexual violations: “. . . approximately 10 incidents of sexual violence occurred between September 1, 1993 and June 30, 1994” (para. 43).

14The sentencing judge found that there were no mitigating factors. She gave limited weight to the numerous character reference letters submitted on the respondent’s behalf, noting that his crimes had taken place in private and that his public reputation was of little relevance to his moral blameworthiness. The respondent also submitted a “psychosexual assessment” prepared by a psychologist, which indicated that his profile was unremarkable for sexual deviance. The sentencing judge assigned little weight to this report given that, amongst other factors, the psychologist did not consider the facts underlying the respondent’s convictions.

15Turning to the case law, the sentencing judge noted the three-year starting point for major sexual interference set out in R. v. Hajar, 2016 ABCA 222, 39 Alta. L.R. (6th) 209, as well as the four-year starting point for major sexual assault by a person in a position of trust set out in R. v. W.B.S. (1992), 127 A.R. 65 (C.A.). She stated that it was appropriate to consider these starting points “through the lens of Friesen” and in light of the Court’s comment that an upward departure from existing precedents was warranted (para. 52). She adopted the reasoning in R. v. Misay, 2021 ABQB 485, 31 Alta. L.R. (7th) 157, in which it was concluded that the appropriate comparator cases for sentencing sexual assaults against children should be post-2015 and post-Friesen.

16After reviewing recent decisions with analogous facts, the sentencing judge concluded that a fit sentence was six years’ incarceration on each of the sexual interference and invitation to sexual touching counts, to be served concurrently. The respondent received a credit of 11 days for 7 days of pretrial custody.

B. Court of Appeal of Alberta, 2023 ABCA 381, 69 Alta. L.R. (7th) 1 (Wakeling, Crighton and Feehan JJ.A.)

17The respondent appealed his sentence. Wakeling J.A. and Feehan J.A. wrote separately, but together they formed a majority in favour of allowing the appeal and varying the sentence from 6 years’ incarceration to 3 years and 11 months’ incarceration. They each identified different errors, though there was some overlap in their analyses. Crighton J.A. wrote for herself in dissent and would have dismissed the appeal.

(1) Reasons of Wakeling J.A.

18Writing for himself, Wakeling J.A. held that the sentencing judge committed two errors in principle that impacted the sentence, both of which warranted appellate intervention.

19In Wakeling J.A.’s view, the first material error was the sentencing judge’s failure to identify the crimes for which she sentenced the respondent. Instead, she held that the respondent committed approximately 10 acts of “sexual violence”. Wakeling J.A. noted that sexual violence is not a codified crime and that the acts that the respondent was found to have committed were not “violent” in the ordinary sense of that word.

20Wakeling J.A. also held that the sentencing judge gave insufficient reasons explaining her factual findings. Specifically, she “fail[ed] to give any reasons for her conclusion that the complainant was a reliable witness” (para. 144). According to Wakeling J.A., it was incumbent on the sentencing judge to address directly several concerns about the complainant’s reliability.

21Wakeling J.A. concluded that he was unable to “construct reasons” that would have assuaged these concerns and justified the sentencing judge’s acceptance of most of the complainant’s testimony (para. 157). Wakeling J.A. determined it was necessary to sentence the respondent afresh accepting only those facts that were essential to the jury’s verdict: the respondent touched the complainant’s genitals once or invited the complainant to touch the complainant’s genitals once and the complainant was under 14 years of age.

22Relying on the sentencing guidelines he had developed for sexual assault in his concurring reasons in R. v. Quintero-Gelvez, 2023 ABCA 64, and his dissenting reasons in R. v. S.L.W., 2018 ABCA 235, 72 Alta. L.R. (6th) 63, Wakeling J.A. established a sentencing guideline for sexual interference. It entailed classifying the acts committed into one of three subsets: (a) most egregious, namely penile penetrative assaults; (b) more egregious, including fellatio, cunnilingus, and penetration of the vagina or anus by an object or a body part other than the penis; and (c) egregious, the least intrusive kind, including groping over clothing. Considering the maximum penalty in force in 1993 and 1994, Wakeling J.A. determined that the following starting points for an offender in a position of trust were appropriate (at para. 202):

23Applying this framework to the facts that were essential to the jury’s verdict, Wakeling J.A. held that the correct starting point was 39 months for the act of touching the complainant’s penis once, because it was on the lower end of the more egregious subset. He found that the Crown had not proven any aggravating factors and that a 25 percent reduction in the starting point was warranted for the respondent’s demonstrated ability to live a law-abiding life since the offence. Accordingly, Wakeling J.A. concluded that the appropriate sentence for sexual interference was 29 months’ imprisonment. Using the same methodology, he determined that the appropriate sentence for invitation to sexual touching was 18 months’ imprisonment. Because the offences of sexual interference and invitation to sexual touching were different, he reasoned, there was no sound reason to make the sentences run concurrently. He ordered that they be served consecutively arriving at a global sentence of 47 months’ imprisonment.

(2) Reasons of Feehan J.A.

24Feehan J.A. concurred with Wakeling J.A. in the result but reached this conclusion for different reasons. He held that the sentencing judge committed three errors in principle that impacted the sentence.

25First, Feehan J.A. held that the sentencing judge failed to identify which facts were essential to the jury’s verdict and which facts she found through her own fact-finding process. He considered that identification process to be a requirement set out in this Court’s decision in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96. The sentencing judge also failed to identify which facts related to each offence and did not indicate which additional facts were aggravating.

26Feehan J.A. further concluded that the sentencing judge erred by discounting all pre-Friesen decisions. Because this was a historical offence, she should instead have considered decisions spanning from the time of the offence to the time of sentencing, simply placing less weight on those that were rendered pre-Friesen, as the Alberta Court of Appeal instructed in R. v. M.A.C., 2023 ABCA 234, 91 C.R. (7th) 425.

27The third error that Feehan J.A. identified was the sentencing judge’s refusal to count the respondent’s years of pro-social lifestyle as a mitigating factor.

28Feehan J.A. agreed with Wakeling J.A. that the respondent had to be sentenced afresh. However, he took another approach, giving different weight to sentencing ranges from different time periods. Feehan J.A. observed that sentences imposed between 1993 and 2003 for cases where the facts were similar to the present case averaged at around two to three years’ imprisonment. He held that those cases should be considered but that they should be given less weight post Friesen. Sentences imposed from 2017 to 2020 for cases where the facts were similar to the present case averaged at three to three and a half years’ imprisonment, and he held that those cases should be given medium weight. Finally, post Friesen, the average sentence for cases with similar factual circumstances rose to four years’ imprisonment. He held that post-Friesen case law should be given the most weight.

29Applying this framework, Feehan J.A. held that the appropriate sentence for the respondent for sexual interference was 4 years and that the appropriate sentence for invitation to sexual touching was 18 months. Contrary to Wakeling J.A., Feehan J.A. held that the sentencing judge’s decision to make the sentences run concurrently should not be disturbed, and he arrived at a global sentence of 48 months’ incarceration.

30Because Wakeling J.A. arrived at a similar sentence of 47 months’ incarceration, Feehan J.A. determined that it was appropriate to modify his disposition to match that of Wakeling J.A. in order to form a majority for the purposes of the disposition.

(3) Reasons of Crighton J.A. (Dissenting)

31Crighton J.A. disagreed with the majority’s criticisms of the sentencing judge’s reasons. In her view, the sentencing judge made no errors that would warrant appellate intervention.

32With respect to Wakeling J.A.’s conclusion regarding sufficiency of reasons, Crighton J.A. held that the basis for the sentencing judge’s factual findings was intelligible when those factual findings were read in the context of the record and arguments at trial. The sentencing judge heard comprehensive arguments about which facts to find, and she correctly instructed herself not to attempt to reconstruct the jury’s logic but rather to make an independent determination of the facts relevant to the verdicts and sentencing process. The sentencing judge ultimately found that the respondent sexually violated the complainant approximately 10 times over a number of months, which was amply supported by the record before her.

33Crighton J.A. also held that the sentencing judge did not err in her treatment of Friesen. She observed that Feehan J.A. placed significance on the instructions to trial judges in M.A.C. to not automatically discount all pre-Friesen cases but to instead consider them “in light of Friesen” (para. 389). That is precisely what the sentencing judge did. Crighton J.A. also noted that, at para. 47 of R. v. Bertrand Marchand, 2023 SCC 26, this Court “unequivocally confirmed that ‘courts should depart from dated precedents that do not reflect society’s current awareness of the impact of sexual violence on children in imposing a fit sentence’” (para. 387). Given this guidance, she held that the sentencing judge was entitled to conclude that pre-Friesen cases did not adequately account for the harm inflicted on the child in the present case.

34Finally, Crighton J.A. held that the sentencing judge was owed deference on her conclusion that the character references were not mitigating. The sentencing judge reasoned that the referees’ positive perceptions of the respondent, particularly while the abuse was going on, indicated that they did not know the respondent as well as they thought. The sentencing judge was also entitled to place little weight on the psychologist’s report, which did not account for the conduct comprising the offences at issue.

35In conclusion, Crighton J.A. held that the sentencing judge did not make any errors in principle that would warrant appellate intervention and that the original sentence of six years’ imprisonment should be upheld.

IV. Issues

36The Crown appealed, arguing that the court below was wrong to intervene, and sought to have the original sentence of six years’ incarceration restored. To resolve whether intervention by the court below was justified, this Court considered two main issues:

37A further issue arose as to whether the respondent should be reincarcerated to serve the remainder of his sentence given this Court’s conclusion that the Court of Appeal was wrong to interfere with the sentencing judge’s decision.

V. Analysis

A. Standard of Review

38Sentencing decisions are discretionary and are owed considerable deference from appellate courts (Lacasse, at para. 41, citing R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 123 and 125; see also Lacasse, at para. 55; R. v. Nahanee, 2022 SCC 37, at para. 40). The presumptive posture of deference reflects the fact that sentencing judges, having heard the evidence and submissions first-hand, enjoy an advantageous position relative to appellate courts (Lacasse, at para. 48). Typically, sentencing judges are also immersed in the jurisdiction where the offence took place and understand the needs of the community as they relate to denunciation and deterrence (ibid., citing R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 91). Finally, a deferential approach prevents the misuse of judicial resources and unnecessary delay, as Doherty J.A. noted in R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261:

39Taking deference as the starting point, an appellate court is entitled to intervene only where the sentencing judge has committed an error in principle that impacted the sentence or where the sentence is demonstrably unfit (Lacasse, at paras. 44 and 46; R. v. J.W., 2025 SCC 16, at para. 51). Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor (Friesen, at para. 26). The appellate court must not only identify such an error, but must also be satisfied that it had an impact on the sentence (ibid.; Lacasse, at para. 44). If the court is satisfied that the error impacted the sentence, “[i]t is not a further precondition to appellate intervention that the existing sentence is demonstrably unfit or falls outside the range of sentences imposed in the past” (Friesen, at para. 27).

40Where an appeal is based exclusively on alleged errors in principle, the reviewing court should withhold passing judgment on the ultimate sentence imposed while investigating those alleged errors and their impact (Lacasse, at para. 44). This should go without saying. Appellate courts must take great care not to allow their own assessment of the record, and what weight they would have given to various factors, to colour the lens through which they view the sentencing judge’s reasoning (R. v. V. (W.), 2023 ONCA 655, 169 O.R. (3d) 68, at para. 26). The integrity of appellate intervention would be compromised if a supposed error in principle could serve as a pretext for the appellate court substituting its own view of the appropriate sentence.

41Once an appellate court identifies a basis on which to intervene — either that the sentencing judge committed an error in principle that impacted the sentence or that the sentence imposed was demonstrably unfit — that court is tasked with sentencing the offender afresh (Friesen, at para. 27). At this stage, the appellate court applies the principles of sentencing and comes to its own determination of a fit sentence in the circumstances, without deference to the original sentence, while still adhering to the sentencing judge’s untainted findings of fact (para. 28).

42Often, the appellate court will arrive at a sentence that differs from the one originally imposed and will vary that sentence. This will obviously be the case where the basis for intervention is that the original sentence was demonstrably unfit. However, where the basis for intervention is an error in principle, the appellate court may, upon its own independent review, arrive at the same sentence as the one originally imposed. In such cases, the court may affirm the sentence despite the error (Friesen, at para. 29).

B. No Errors in Principle Justifying Intervention

(1) The Sentencing Judge’s Reasons Were Sufficient

43The court below held that the sentencing judge failed to provide sufficient reasons explaining her factual findings. In this Court, the Crown argues that a contextual reading of the sentencing judge’s reasons demonstrates that the relevant functions of reasons, as identified in the jurisprudence, were fulfilled (A.F., at paras. 28-31). I agree. There was no insufficiency that would constitute an error in principle affecting the sentence. For the reasons that follow, I conclude that the court below erred by intervening on this basis.

(a) Governing Principles

44Sentencing judges are required to provide reasons for sentence (Criminal Code, R.S.C. 1985, c. C-46, s. 726.2). This Court has repeatedly emphasized that appellate courts are to review those reasons functionally and contextually (R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 (“Sheppard 2002”); R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at paras. 68-69; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 19; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 101; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 15; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 15).

45Reviewing reasons functionally means assessing whether they are sufficient not in the abstract, but in relation to the fundamental purposes that reasons serve (Sheppard 2002, at para. 42). Those purposes are to hold judges accountable to the public, to provide an intelligible result to the parties, and to enable effective appellate review (paras. 15, 42 and 55; G.F., at para. 68). What is necessary to achieve those purposes will depend on the circumstances of the case and, in particular, the issues that were in dispute (G.F., at para. 68; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31).

46Under a contextual approach, “[t]he foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded” (R.E.M., at para. 17). As this Court explained in R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, “[i]n sentencing, as with any decision, the reasons must, when read in conjunction with the record, show why the judge reached a particular result” (para. 39; see generally R.E.M., at para. 37). Sentencing reasons must also be read and understood in conjunction with the reasons for conviction or, in the case of a jury trial, the verdict and the essential facts it implies.

47On this approach, an appellate court may intervene only if the reasons are legally or factually insufficient or if they are so muddled that meaningful appellate review is impossible (G.F., at paras. 71 and 108; Sheppard 2002, at paras. 28 and 46; R.E.M., at para. 17). Legal sufficiency requires that the aggrieved party be able to understand the legal basis of the decision in order to meaningfully exercise any right of appeal (G.F., at para. 74; Sheppard 2002, at paras. 64-66). However, it does not demand that the sentencing judge expound on features of the criminal law that are uncontroversial in the context of the case. Sentencing judges are presumed to know the basic principles of criminal law at issue in the case (R.E.M., at para. 45). Factual sufficiency requires that the factual basis for the decision be discernible, even if articulated unartfully (G.F., at para. 71; Sheppard 2002, at para. 55).

48The functional and contextual approach rejects a fine parsing of reasons in search of error (R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at paras. 13 and 33). In G.F., Karakatsanis J. expressed concern that some appellate courts continue to parse reasons, often in a manner that attacks the trial judge’s credibility findings:

49I echo my colleague’s concern, which is no less salient in the context of sentence appeals. On a sentence appeal, the factual findings and basic credibility determinations that are implied by the verdict are not up for debate. The sentencing judge may be called upon to make further findings of fact or credibility determinations that relate only to issues on sentencing (Criminal Code, s. 724). While the basis for those further findings must be discernible upon a contextual review of the record, the credibility findings themselves are owed “particular” deference on appeal (G.F., at para. 81; see also Dinardo, at para. 26).

50The foregoing principles guide appellate courts in determining whether reasons are insufficient, which is an error in principle (Nahanee, at para. 59(ii)). Under the Lacasse framework, however, the appellant must not only identify an error in principle but must also show that the error impacted the sentence. In my view, the “impact” criterion dovetails with the functional approach to reviewing the sufficiency of reasons: appellate intervention is permitted only when a deficiency renders the sentence incomprehensible or appellate review impossible. When this is the case, the appellate court is justified in assuming that the deficiency impacted the sentence, since the inherent nature of insufficient reasons is that they make the presence of faulty reasoning impossible to prove.

(b) Application

51Wakeling J.A. held that the sentencing judge erred by embarking on an independent fact-finding process pursuant to s. 724(2)(b) of the Criminal Code without providing reasons for the facts that she found. Section 724(2)(a) of the Criminal Code requires sentencing judges to accept as proven all facts that are essential to the jury’s verdict, and s. 724(2)(b) permits sentencing judges to find any other facts disclosed by the evidence at trial that are relevant to sentencing to be proven or to hear evidence by either party with respect to those facts:

52The sentencing judge set out the facts that she found had been proven “beyond a reasonable doubt” pursuant to s. 724(2)(b) (paras. 4-12). They included approximately 10 instances of sexual violence in line with the complainant’s testimony. In my view, on a functional and contextual approach, the basis for these findings was obvious in light of the record, the issues raised at trial, and the parties’ submissions on sentencing.

53The trial in this case turned on credibility and reliability. The complainant testified to a pattern of conduct by the respondent that constituted sexual interference and invitation to sexual touching, and the respondent denied each allegation. No other witnesses were called. The jury returned a verdict of guilty on each count, necessarily implying that it found the complainant credible and reliable at least to some extent. This was the backdrop against which the sentencing judge made her factual findings.

54Also relevant are counsel’s submissions to the sentencing judge. The Crown submitted that the complainant’s testimony established 10 to 12 instances of sexual violence, which occurred mostly in the duty master’s room but also included one incident of oral sexual contact in the woods outside the school. Counsel for the respondent did not contest specific facts but argued that it would be an error for the sentencing judge to rely on any facts aside from those essential to the jury’s verdict (A.R., vol. III, at pp. 290-91). Counsel for the respondent’s position was that because the counts at trial had not been particularized, the only essential facts to convict on all three counts were that one instance of sexual touching and one instance of invitation to sexual touching occurred. In oral submissions, counsel explained his view that it was not open to the sentencing judge to accept any aggravating facts because the Crown led no evidence at the sentencing hearing (pp. 199-201).

55The sentencing judge did not take up the respondent’s position, which was clearly wrong in law: sentencing judges are entitled to make factual findings based on the evidence led at trial, including findings as to aggravating facts, which must be found to be proven beyond a reasonable doubt (Criminal Code, s. 724(2)(b); Ferguson, at para. 18). Sentencing judges are not required to solicit the same evidence a second time on a dedicated evidentiary hearing in order to make findings regarding aggravating facts.

56Setting that argument aside, the sentencing judge made factual findings that were available on the record. There was no evidence at trial that contradicted or undermined specific allegations made by the complainant other than the respondent’s blanket denial of the allegations. The jury had already rejected the respondent’s denial and accepted that the complainant was, at least to some extent, credible and reliable. With that premise as a starting point, and in light of the Crown’s argument that the complainant’s evidence on the 10 to 12 instances should be accepted, the evidentiary basis of the sentencing judge’s reasons is sufficiently clear.

57Wakeling J.A. objected that the sentencing judge should have addressed various reliability concerns, which he identified in his reasons. They included the fact that the events took place 28 years earlier; that the complainant’s recall was limited and skeletal in nature; that the complainant had communicated with the respondent years later and never accused him of any wrongdoing; that the complainant’s testimony at trial was more detailed than the account they gave to the police; that the complainant made two implausible claims, namely, that they remembered being spanked 34 times and that most sexual acts took place in a room that was not private; that the complainant was a troubled child at the time of the alleged offences; and that the complainant had been to therapy since the events, which Wakeling J.A. said could have distorted their memory.

58After canvassing these concerns, Wakeling J.A. concluded that “it would be very dangerous to rely on any other evidence than that the jury must have accepted to find the accused guilty on the three counts” (para. 165). In essence, Wakeling J.A. determined that the complainant’s testimony was not reliable, full stop, and that the sentencing judge should have declined to make any factual findings over and above those that she was bound to accept because they were essential to the jury’s verdict.

59I reject this line of reasoning. The reliability concerns that Wakeling J.A. identified served only to challenge the complainant’s reliability generally and could not logically form a basis for distinguishing between various aspects of their testimony. In my view, Wakeling J.A.’s conclusion amounts to an indirect rejection of the jury’s guilty verdict, which was not up for debate on sentencing.

60Furthermore, I agree with Crighton J.A. and the intervener, the Raoul Wallenberg Centre for Human Rights, that many of the issues Wakeling J.A. identified engage discredited myths and stereotypes. This Court has repeatedly and unequivocally held that “myths and stereotypes have no place in a rational and just system of law” (R. v. Kruk, 2024 SCC 7, at para. 43, quoting R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 2). In particular, the law no longer tolerates any suggestion that the complainant is less credible because they did not confront their abuser. As the Alberta Court of Appeal explained in R. v. A.R.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218, there is no single or expected way for victims of sexual abuse to behave, and their failure to distance themselves from their abuser cannot be taken to undermine their credibility (para. 42, citing R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at paras. 63 and 65, per Major J., dissenting, but not on this point; see also Kruk, at para. 41).

61Similarly, the suggestion that the complainant’s history of undergoing therapy per se impugned their credibility or reliability is not tenable. This Court stated in R. v. Mills, [1999] 3 S.C.R. 668, that “[t]he notion that consultation with a psychiatrist is, by itself, an indication of untrustworthiness is a more recent, but equally invidious, example of such a myth” (para. 119; see also R. v. J.J., 2022 SCC 28, [2022] 2 S.C.R. 3, at para. 132; Kruk, at para. 41). Absent some reason to believe that the complainant’s recollection was distorted by therapy, the conclusion that the sentencing judge ought to have counted this as a reliability concern is wrong in law (A.F., at para. 47; I.F., at para. 15).

62Finally, I reject the idea that the complainant was less credible or reliable because they were already troubled and isolated at the time of the assaults or because they described their time at the boarding school as traumatic. Far from undermining their reliability, the complainant’s testimony suggested that the respondent targeted them because they were troubled and isolated (A.R., vol. II, at p. 73). Certainly the complainant’s account of life at the boarding school as traumatic was not inconsistent with their allegations of sexual violence.

63Building upon Wakeling J.A.’s criticisms, Feehan J.A. held that the sentencing judge’s reasons were insufficient because they did not clarify which factual findings were essential to the jury’s verdict and which were made through her own independent fact-finding process. He interpreted Ferguson as imposing a requirement on sentencing judges to categorize factual determinations in that manner. In his view, without an explanation of which facts were essential and which were not, it was impossible to understand the basis of the sentencing judge’s decision or to conduct a meaningful appellate review (paras. 286 and 289).

64Respectfully, I fail to see the problem. Nowhere in Ferguson did McLachlin C.J. assert that sentencing judges are required to follow a two-step fact-finding process, as Feehan J.A. suggested. The question of which facts are essential to a verdict is a question of law, not one of discretion. On the basis of the essential elements of the offence, it is possible to deduce what the essential facts were. Indeed, in the very same paragraph in which Feehan J.A. faulted the sentencing judge for failing to specify which facts were essential, he himself identified which facts were essential (para. 288). The sentencing judge was not required to explain legal matters that were uncontroversial before her, such as the essential elements of the offences of which the respondent was convicted (R. v. Burns, [1994] 1 S.C.R. 656, at p. 664), nor was she required to spell out her reasoning process in a “watch me think” fashion (R.E.M., at para. 17).

(c) Conclusion on Sufficiency of Reasons

65The court below erred by intervening on the basis that the sentencing judge’s reasons were insufficient. When the sentencing judge’s reasons are viewed in context, it is clear how she arrived at her factual findings, and she was not obligated to spell out which findings were essential to the jury’s verdict and which she made through her own fact-finding process.

(2) The Sentencing Judge Correctly Applied the Principles of Friesen

66I turn now to the second ground of appeal, which raises the issue of whether the principles and sentencing ranges set out in this Court’s decision in Friesen apply to historical offences, and if so, how. In the court below, Feehan J.A. found that the sentencing judge did not give appropriate weight to pre-Friesen jurisprudence. In my view, he erred in intervening on this basis. As I will explain, the sentencing judge was correct to rely on Friesen and on post-Friesen jurisprudence in determining a fit sentence, and she was not obligated to cushion the impact of Friesen by balancing it against historical jurisprudence.

(a) The Approach to Sentencing for Historical Offences

(i) Contemporary Sentencing Principles Apply to Historical Offences

67Sentences for historical offences are properly determined in accordance with the sentencing regimes and societal perspectives that prevail at the time of sentencing (R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752, at para. 61; R. v. Wright, 2024 ONCA 516 (“Wright 2024”), at para. 10; R. v. De Flores Bermudez, 2024 ONCA 433, at paras. 26-28; R. v. R.D. (1996), 144 Sask. R. 21 (C.A.), at para. 11; R. v. Fones, 2012 MBCA 110, 288 Man. R. (2d) 86, at para. 60; R. v. Paradis (1991), 92 Nfld. & P.E.I.R. 271 (Nfld. C.A.), at para. 11; R. v. R.O., 2023 BCCA 65, at para. 49; L.L. v. R., 2016 QCCA 1367, at paras. 149-50; R. v. Hall, [2011] EWCA Crim 2753, [2012] 2 All E.R. 340, at para. 47, per Lord Judge C.J.).

68The rationale for this approach is rooted in the principle of proportionality: sentences must be “proportionate to the gravity of the offence and the degree of responsibility of the offender” (Criminal Code, s. 718.1). What is regarded as a proportionate sentence depends on “society’s current understanding and awareness of the gravity of a particular offence and blameworthiness of particular offenders” (Friesen, at para. 35). Societal appreciation of the nature of criminal acts is bound to evolve over time; when it does, so too must the sentencing regimes that apply to those acts (para. 110; R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, at para. 62; R. v. Vautour, 2016 BCCA 497, at paras. 52‑54; R. v. Smith, 2017 BCCA 112, at para. 36).

69Alongside the principle of proportionality, sentencing judges are also required to consider the principle of parity: “. . . similar offenders who commit similar offences in similar circumstances should receive similar sentences” (Friesen, at para. 31; Criminal Code, s. 718.2(b)). The respondent argues that the principle of parity requires the application of historical principles to historical offences (R.F., at paras. 69-71). However, as this Court explained in Friesen, “parity is an expression of proportionality” — not the other way around (para. 32). That means that sentences should be consistent with other proportionate sentences imposed under similar circumstances (R.O., at para. 49). There is no value in achieving parity with disproportionate sentences.

70Where the judiciary has determined that sentences have been deflated or inflated because of inaccurate perceptions about the nature of the offence or the offender, the principle of parity demands conformity with the sentences that are deemed to be proportionate (Friesen, at para. 87; R.O., at paras. 52-53; Wright 2024, at para. 12). Sentencing judges who have the benefit of revised sentencing principles are therefore obligated to apply contemporary principles, even though doing so may result in sentences that are dissimilar to the sentences previously imposed for the offence in question.

71Applying contemporary sentencing principles to historical offences is also necessary to achieve the sentencing objectives set out in s. 718(a) to (f): denunciation, deterrence, protection of society, rehabilitation of the offender, reparation to the victim, the promotion of a sense of responsibility in the offender, and acknowledgement of the harm caused to the victim or community (see also Paradis, at para. 11). These objectives can meaningfully be assessed only when the offender is before the sentencing judge. The objective of denunciation in particular demands a contemporary perspective because it entails condemning the offender “for encroaching on our society’s basic code of values” (Friesen, at para. 105, citing M. (C.A.), at para. 81). To sentence in a manner that breathes new life into dated or defunct societal values would distort the expressive function of the criminal justice system.

(ii) The Principles Set Out in Friesen Apply to Historical Sexual Offences Against Children

72In Friesen, this Court recognized that the sentences being imposed for sexual offences against children were disproportionately lenient because they were rooted in historical misconceptions about the gravity of these offences (paras. 50 and 110). This Court directed courts to “take the modern recognition of the wrongfulness and harmfulness of sexual violence against children into account when determining the offender’s degree of responsibility” (para. 87). In practice, this meant that “sentences for sexual offences against children must increase” (para. 151) and that “[c]ourts are thus justified in departing from precedents” (para. 110).

73Part of the impetus for inviting an upward shift in sentences was Parliament’s decision to enact the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23 (Friesen, at paras. 98-100). That statute increased the maximum sentences for sexual interference, invitation to sexual touching, sexual exploitation and sexual assault where the victim is under 16 years of age from 10 years’ imprisonment to 14 years’ imprisonment. This Court held that Parliament’s decision to increase maximums should “be understood as shifting the distribution of proportionate sentences for an offence” (para. 97).

74However, the increased maximum sentences were not a standalone basis for modifying common law sentencing ranges; rather, they were taken to inform the assessment of proportionality because they signalled society’s evolved understanding of the gravity of the offence (Friesen, at para. 96; Bertrand Marchand, at para. 47; R. v. Rayo, 2018 QCCA 824, at para. 125; Stuckless, at para. 112; R.O., at para. 50). In other words, the logic of the upward shift was not to track a change made by Parliament but to follow Parliament’s example in calibrating the law to reflect society’s current awareness of how sexual offences impact children. Our decision in Friesen reinforced Parliament’s rejection of antiquated conceptions of sexual violence against children that were rooted in chastity or propriety, embracing instead a modern understanding focused on the protection of children’s bodily, psychological, and sexual integrity, as the Quebec Court of Appeal explained in Fruitier v. R., 2022 QCCA 1225, at para. 38:

75While the retrospective application of increased maximum penalties is constitutionally barred, that is not the case with contemporary sentencing principles such as those set out in Friesen (see Bertrand Marchand; Stuckless; R.O.). Section 11(i) of the Canadian Charter of Rights and Freedoms reads as follows:

76This result follows from the nature of sentencing ranges: they are “not hard and fast rules” and “cannot be binding in either theory or practice” (Friesen, at para. 37; Parranto, at para. 36; R. v. Wright (2006), 83 O.R. (3d) 427 (C.A.) (“Wright 2006”), at para. 22). Instead, the maximum penalty in place at the time an offence is committed represents the “legal risk” that a person is assuming by committing the act (R.O., at para. 51). Anything below that maximum penalty is a sentence that was available at the time of the offence, even if it was outside a non-binding sentencing range at the time, and cannot be said to have been “varied” within the meaning of s. 11(i).

77There is no constitutional reason or compelling logical justification for continuing to enforce artificially lenient common law sentencing ranges for historical offences (R.O., at para. 52; Stuckless, at para. 61). So long as the sentence imposed does not exceed the maximum penalty at the time of the offence, sentencing judges should base their reasoning on the most accurate and up-to-date understanding of the gravity of the offence (Friesen, at para. 87; R.O., at para. 50; Stuckless, at para. 110; R. v. X, 2022 QCCA 266, at para. 22).

78Indeed, this Court has signalled, both in Friesen and subsequent cases, that its directive to increase sentences applies retrospectively. For example, Friesen cites the Ontario Court of Appeal’s decision in Stuckless extensively, including to illustrate the proposition that courts are “justified in departing from precedents in imposing a fit sentence” (para. 110, citing Stuckless, at paras. 61-62). The court in Stuckless spoke explicitly about the need to depart from dated precedents in fashioning a sentence for offences committed prior to the increase in maximum penalties (paras. 61-62).

79To the same effect, in Bertrand Marchand, the Court applied the Friesen principles on sentencing for offences committed between 2013 and 2015 — before the maximum penalties were increased — stating that “courts should depart from dated precedents that do not reflect society’s current awareness of the impact of sexual violence on children” (para. 47).

(iii) Historical Jurisprudence May Be Considered, but Only Insofar as It Aligns With Contemporary Principles

80While contemporary case law should guide the analysis, sentencing judges are entitled to consider dated case law insofar as it aligns with contemporary principles. I agree with the Alberta Court of Appeal’s direction in M.A.C. that pre-Friesen sentencing decisions are not automatically irrelevant, particularly where the facts are highly analogous; rather, “the sentencing court must carefully consider those precedents in light of Friesen and whether those sentences appropriately reflect the harm to the children” (para. 50).

81Generally speaking, the usefulness of a historical decision will depend on its factual comparability to the case at hand, as well as on the degree to which relevant legal principles, societal attitudes, and legislative provisions have evolved since the decision was rendered. For example, it is safe to assume that historical jurisprudence will not be useful, at least not on its face, when considering offences that are now viewed through a markedly different lens.

82As this Court’s decision in Friesen makes clear, society, the common law, and legislation have all undergone significant evolution in their treatment of sexual offences against children. Sentencing judges who rely on historical case law in fashioning a sentence for such offences should interpret the reasoning and dispositions in that case law through the lens of Friesen (R. v. Gargan, 2023 NWTCA 5, [2023] 11 W.W.R. 31, at para. 19; R. v. L.A., 2023 SKCA 136, at para. 40). A one-to-one correspondence with most earlier decisions is neither possible nor appropriate (Friesen, at para. 108; R. v. Williams, 2020 BCCA 286, 396 C.C.C. (3d) 59).

83To reiterate, sentencing judges are entitled to consider historical precedents, though only insofar as they align with contemporary sentencing principles. This should not be taken to suggest that sentencing judges are required to consider such precedents or that declining to do so is an error in principle.

(b) Application to the Approaches Taken in the Courts Below

84The correct approach, as I have explained, is to sentence the offender in accordance with the principles and ranges prevailing at the time of sentencing, while respecting the maximum penalty in place at the time of the offence. Sentencing judges are entitled to consider relevant historical case law in this exercise, though they must do so through the lens of Friesen. Sentencing judges are not required to consider historical case law, and declining to do so is not an error in principle that could warrant appellate intervention.

85The sentencing judge in the present case made no error in her approach. She took note of the starting points that prevailed prior to Friesen, which she regarded as “a useful guide” (para. 52). She then directed herself to consider those starting points “through the lens of Friesen and in light of the Court’s comments that ‘an upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence’” (ibid.). She arrived at a sentence of 6 years’ incarceration, which did not exceed the maximum penalty of 10 years’ incarceration that was in place when the respondent committed the offences at issue.

86Feehan J.A. incorrectly held that the proper approach to sentencing for historical sexual offences against children requires a differential weighting of historical sentencing ranges from various time periods. He relied on M.A.C. to develop this approach; however, the court in M.A.C. merely observed that historical precedents should not automatically be deemed irrelevant (para. 50). The court then instructed that “the sentencing court must carefully consider those precedents in light of Friesen and whether those sentences appropriately reflect the harm to the children” (ibid.). That is precisely what the sentencing judge did in this case.

87It also bears noting that, while Wakeling J.A. did not base his intervention on the sentencing judge’s treatment of Friesen, he erred in his approach to Friesen in the course of his resentencing exercise. Specifically, Wakeling J.A. recognized that sentences for historical offences are to be determined in accordance with the sentencing regimes — and in the case of Alberta, starting points — applicable at the time of sentencing (para. 218). However, he viewed the contemporary starting points as affixed to contemporary legislative maximums and accordingly held that those starting points should be commensurately decreased to match the lower maximum penalties in place in 1993 (paras. 199-200).

88As I have explained, the 2015 increase in maximum penalties was not a standalone basis for increasing sentences but rather signalled an underlying shift in society’s understanding of the gravity of sexual offences against children. While the retrospective application of the increased maximum penalties themselves is constitutionally barred, the revised common law sentencing regime that reflects our improved understanding is not. Wakeling J.A. was incorrect to adjust contemporary common law sentencing starting points in conformity with the maximums in place at the time of the offence.

(c) Conclusion on the Applicability of Friesen

89The court below erred in intervening on the basis that the sentencing judge failed to consider historical jurisprudence. She was not required to do so and committed no error in her approach to sentencing for historical offences.

(3) No Other Errors Justify Appellate Intervention

90Finally, the court below found additional errors that formed, in part, the basis for its intervention. With respect, these errors did not justify appellate intervention.

91First, I do not agree that the sentencing judge “failed to identify the crimes for which she sentenced the offender” (C.A. reasons, at para. 103, per Wakeling J.A.) or that the use of the term “sexual violence” to refer to the underlying offences was an error in principle that impacted the sentence. In Wakeling J.A.’s view, the sentencing judge’s acceptance that the Crown had proved “approximately 10 instances of sexual violence” was in error, since “[t]here is no crime of sexual violence” (paras. 104-5). He concluded that none of the respondent’s alleged acts constituted violence in the ordinary sense of the word (paras. 106-9).

92However, there was no ambiguity with respect to the acts for which the sentencing judge sentenced the respondent. She began by stating that the respondent was found guilty by a jury “of sexual interference (Count 1), invitation to sexual touching (Count 2), and sexual assault (Count 3)” and that “[t]he conviction for sexual assault is stayed” (paras. 1-2). Having explicitly identified the relevant Criminal Code offences, the sentencing judge then set out her factual findings with respect to the specific acts that constituted those offences (paras. 5-13). Given the elements of each offence, it is clear that the respondent’s acts of touching the complainant for a sexual purpose constituted sexual interference, his acts of directing the complainant to touch their penis or his own constituted invitation to sexual touching, and both sets of acts constituted sexual assault.

93Furthermore, the sentencing judge committed no error by using the term “sexual violence” to refer broadly to all of the respondent’s acts. As stated in Friesen, “any manner of physical sexual contact between an adult and a child is inherently violent” (para. 82). In that case, this Court used the term “sexual violence” to refer broadly to the acts underlying the offences including sexual interference, invitation to sexual touching, sexual exploitation, and sexual assault, as well as child abduction and human trafficking when those offences involve a sexual dimension (para. 44; see also Bertrand Marchand, at para. 31). The sentencing judge made no error describing the respondent’s acts, which had been properly laid out and specified, as “sexual violence”; to insist otherwise is to perpetuate the “myth that ‘real rape’ is defined by physical violence, beyond the violence of non-consensual touching” (R. v. Kirkpatrick, 2022 SCC 33, [2022] 2 S.C.R. 480, at para. 71, quoting L. Gotell and I. Grant, “Non-Consensual Condom Removal in Canadian Law Before and After R. v. Hutchinson” (2021), 44 Dal. L.J. 439, at p. 456).

94Nor do I agree with Feehan J.A. that the sentencing judge committed an error by failing to provide any mitigation for the respondent’s “years of pro-social lifestyle” (para. 314). With respect to the evidence, Feehan J.A. noted the following:

95The sentencing judge was entitled to place little weight on what she understood to be the respondent’s otherwise clean record. As stated in C. C. Ruby, Sentencing (10th ed. 2020), at §§ 8.16-8.17, the mitigating effect of a blameless record “is appropriate to an isolated criminal act or one that is committed on the spur of the moment”, but the lack of a record “loses much of its force” where the offending is repeated and occurs over a lengthy period of time (see also R. v. R.M., 2019 BCCA 409, at para. 23).

96Moreover, the new evidence before this Court reveals that the respondent did indeed have convictions for assault against children prior to his commission of these offences. It is not clear why these convictions were not before the sentencing judge, though I note that the respondent was asked by his counsel at trial whether he had a criminal record, and he replied “I do not” (A.R., vol. II, at p. 211). At any rate, in light of this new evidence, there is no basis to uphold appellate intervention on the ground that the sentencing judge placed insufficient weight on the respondent’s “pro-social lifestyle”.

97Finally, the sentencing judge is owed deference on her decision to give no mitigating effect to the character letters in particular. This Court has recognized that, as sexual misconduct often occurs in private, it will not, in most cases, be reflected in the offender’s reputation in the community (R. v. Profit, [1993] 3 S.C.R. 637, at pp. 637-38).

C. Commentary on Sentencing Afresh in the Court Below

98I have concluded that there was no valid basis for the court below to disturb the sentence imposed by the sentencing judge and that the original sentence should be restored. While it is not strictly necessary to address the manner in which the majority in the court below conducted the resentencing exercise, I would take this opportunity to reiterate this Court’s guidance on starting points as set out in Parranto and Friesen.

99In Parranto, this Court held that starting points are a permissible form of guidance for appellate courts to provide to sentencing judges. This Court confirmed that a legitimate role of appellate courts is “to provide guidance to assist sentencing judges in minimizing idiosyncrasies and to promote consistency in approaches to sentencing”; however, we were clear that “there is no one uniform approach to sentencing in Canada” and that “[a]ttempts to create a single uniform approach are . . . misguided” (para. 34).

100Not all starting points are created equal. In Friesen, we addressed the practice of defining starting points for sexual offences based on the degree of physical interference involved in the offence. We held that this practice is not itself erroneous but that courts that place undue emphasis on the type of physical act committed will be prone to various errors. For instance, it is an error to treat the presence or absence of penetration as “the cornerstone of a sentencing range” (Friesen, at para. 141). Parliament has abolished outdated offences that hinged on the presence of penetration, and courts must avoid resurrecting them by way of sentencing distinctions (ibid.; R. v. McDonnell, [1997] 1 S.C.R. 948, at paras. 33-34).

101Additionally, it is an error to assume any definitive correlation between the type of physical act involved in the offence and the harm to the victim (Friesen, at para. 143): “. . . depending on the circumstances of the case, touching that is both extensive and intrusive can be equally or even more physically intrusive than an act of fellatio, cunnilingus, or penetration” (para. 146).

102Perhaps most importantly, in Friesen, we instructed courts not to conceptualize the severity of the interference in terms of a hierarchy of physical acts:

103In the court below, Wakeling J.A. set out to construct starting points for sexual interference. Relying on his decisions in S.L.W. and Quintero-Gelvez, Wakeling J.A. established three subsets of the offence: the most egregious subset, which “is reserved for sexual assaults that most severely degrade the victim’s physical and psychological integrity — penile penetration of the victim’s vagina or anus”; the more egregious subset, which “captures fellatio, cunnilingus, penetration of the vagina or anus by an object or a body part other than the penis, and crimes in which the offender gropes the victim’s breast or genitals underneath clothing, causes the victim to touch the offender’s genitals, and undresses and exposes the victim”; and the egregious subset, which includes acts with the “same degree of seriousness as kissing and groping over clothes” (para. 192 (emphasis deleted)).

104Appellate courts are entitled to identify subsets of an offence and to propose sentencing ranges that will generally be appropriate for those subsets (see R. v. K. (A.J.), 2022 ONCA 487, 162 O.R. (3d) 721). However, dividing an offence like sexual interference into rigid subsets defined solely by the type of physical act committed, as Wakeling J.A. did here, runs counter to this Court’s guidance in Friesen. Sentencing guidelines must be sufficiently flexible to accommodate the reality that “physical acts such as digital penetration and fellatio can be just as serious a violation of the victim’s bodily integrity as penile penetration” (para. 146). Appellate courts exceed their proper role by attempting to dictate a range of sentences based solely on the type of act committed.

105I would conclude with a reminder that sentencing ranges and starting points are not binding and that sentencing judges do not err simply by departing from them (Friesen, at para. 37; Lacasse, at para. 67; McDonnell, at paras. 33-34; Wright 2006, at para. 22). Sentencing is ultimately a discretionary, fact-specific, and individualized exercise (Nahanee, at paras. 40 and 42; Lacasse, at para. 58; R. v. Hills, 2023 SCC 2, at para. 62; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 4; M. (C.A.), at para. 92). Any suggestion by an appellate court that sentencing judges are obligated to abide by stringent judicially crafted categories, particularly those defined solely by the type of physical act committed, is wrong in law.

D. Reincarceration

106Having concluded that the court below erred and that the original sentence should be restored, I turn now to the issue of reincarceration. The respondent argues that it would not be in the interests of justice to order his reincarceration (R.F. (amended), at paras. 80 et seq.).

107In support of his arguments against reincarceration, the respondent brought a motion before this Court to adduce new evidence consisting of two Parole Board of Canada decisions, one granting the respondent day parole and the other granting him full parole. The Crown opposed the motion.

108Following the hearing, this Court unanimously allowed the new evidence motion, allowed the Crown’s appeal and restored the respondent’s original sentence of 6 years’ incarceration, less 11 days’ credit for 7 days of pretrial custody. We also issued an order for the respondent to surrender himself to the proper authorities to be reincarcerated. What follows are our reasons for allowing the motion for new evidence and ordering reincarceration.

(1) New Evidence Motion

109The test for admitting new evidence on appeal was set out in Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775. There are four criteria for admission: due diligence, relevance, credibility, and impact on the result (ibid.; see also R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 29; R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728). This test applies “whenever a party seeks to adduce additional evidence on appeal for the purpose of reviewing the decision below, regardless of whether the evidence relates to facts that occurred before or after trial” (Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, at para. 3). Guided by an overarching concern for the interests of justice, this test strikes a balance between “finality and order in the justice system”, on the one hand, and “reaching a just result in the context of the proceedings”, on the other (paras. 31-32; R. v. Bharwani, 2025 SCC 26, at para. 102).

110On the first criterion, due diligence, there is no issue. The Parole Board decisions could not have been adduced at the time of sentencing, as they were rendered after the respondent started serving his prison term.

111On the second criterion, the decisions are relevant to the issue of reincarceration. First, both decisions state that the respondent has a “pattern” of abusing children and reveal that he was previously convicted of seven counts of assault in 1987, for which he received a suspended sentence and two years’ probation.

112Beyond the revelation of the prior convictions, both decisions provide insight into the respondent’s rehabilitative progress and ability to integrate into the community. The day parole decision notes the respondent’s pattern of abusing positions of power over children as an aggravating factor. The Board did not consider his continued denial of wrongdoing as aggravating but stated that he had criminogenic attitudes and beliefs that were considered aggravating. The respondent was assessed as falling in the average range of risk for sexual recidivism. Mitigating factors were the respondent’s commitment to completing programming, and the fact that he was no longer employed in the education field.

113The decision granting the respondent full parole includes much of the same information. However, by the time of the full parole decision, the respondent had demonstrated compliance with his conditions of release on day parole, and there had been no concerns with his community behaviour. The Board also observed that he had participated in sex offender programming without issue, although he continued to deny his culpability for the offences. Considering these factors, the Board granted the respondent full parole.

114On the third criterion, there is no issue that this evidence is credible.

115The last criterion is that the evidence, if it had been adduced, must reasonably be capable of having changed the result of the decision. The question here is whether the respondent should be reincarcerated. As reincarceration was not an issue that arose previously, this criterion is better formulated as being whether the disposition on reincarceration is likely to be different with the new evidence. For the same reasons that the decisions are relevant, I conclude that the new evidence is capable of affecting the result on reincarceration.

116For the foregoing reasons, the new evidence was admitted.

(2) Conclusion on Reincarceration

117In the circumstances of this case, I am satisfied that denunciation and deterrence cannot be achieved without reincarceration given the gravity of the respondent’s offences, and in particular his pattern of abusing children while in a position of power. These objectives are especially pressing when considering reincarceration for sexual offences against children, as Parliament has legislated the primacy of denunciation and deterrence in relation to these offences (Criminal Code, s. 718.01). I also note that the respondent still has the majority of his sentence left to serve, and, unlike in other cases, the Crown has not conceded that reincarceration should not be ordered (see, e.g., Bertrand Marchand, at para. 102; Proulx, at para. 132). On the whole, the interests of justice compel reincarceration in the circumstances of this case. The respondent is therefore to be reincarcerated to serve the remainder of his custodial sentence.

VI. Disposition

118For the above reasons, the respondent’s motion to adduce new evidence was allowed, the appeal was allowed, and the term of imprisonment imposed at trial was restored.