R. v. Sidwell (K.A.),

JurisdictionManitoba
JudgeSteel, Monnin and Mainella, JJ.A.
Neutral Citation2015 MBCA 56
Citation2015 MBCA 56,(2015), 319 Man.R.(2d) 144 (CA),[2015] 8 WWR 494,[2015] MJ No 147 (QL),319 Man R (2d) 144,319 Man.R.(2d) 144,(2015), 319 ManR(2d) 144 (CA),319 ManR(2d) 144,[2015] M.J. No 147 (QL)
Date05 January 2015
CourtCourt of Appeal (Manitoba)

R. v. Sidwell (K.A.) (2015), 319 Man.R.(2d) 144 (CA);

      638 W.A.C. 144

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. JN.008

Her Majesty The Queen (appellant) v. Kevin Andrew Sidwell (accused/respondent)

(AR14-30-08174; 2015 MBCA 56)

Indexed As: R. v. Sidwell (K.A.)

Manitoba Court of Appeal

Steel, Monnin and Mainella, JJ.A.

May 29, 2015.

Summary:

The accused was working at a drop-in centre connected to a school. He became friends with the complainant, who also worked there. The accused was 31 and the complainant was 14. On the accused's initiation, the relationship became sexual. The accused was convicted of sexual assault, sexual interference and invitation to sexual touching. The sexual assault conviction was stayed on the Kienapple principle. At issue was sentencing. The Crown also sought orders for life under ss. 161(1)(a), 161(1)(b) and 161(1)(c) of the Criminal Code, preventing the accused from attending public parks or swimming pools where children were likely to be, obtaining employment or volunteering for positions involving children and communicating with anyone under the age of 16 without court approval.

The Manitoba Court of Queen's Bench, in a decision reported at (2014), 304 Man.R.(2d) 202, sentenced the accused to 2.5 years' imprisonment on each charge, to be served concurrently. The court granted the order under s. 161(1)(b) and refused to grant the two other orders. The accused's name was to be entered on the Sex Offender Information Registry for 20 years. The court also imposed a 10 year weapons prohibition and a DNA order. The Crown appealed.

The Manitoba Court of Appeal allowed the appeal, varying the sentence to four years' imprisonment.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - The 31 year old accused was convicted of sexual interference and invitation to sexual touching (the present charges) regarding the 14 year old complainant, toward whom the accused was in a position of trust - Two years earlier, the accused had been sentenced to two years' imprisonment on charges of criminal harassment and assault regarding the same complainant - On the present charges, the sentencing judge stated that the accused should be sentenced as though all of the charges had been dealt with at the same time - She then applied the principle of totality and reduced the overall sentence on that basis - The Manitoba Court of Appeal held that this was an incorrect approach - The court discussed the effect of incarceratory sentences not before the sentencing court on the principle of totality - See paragraphs 15 to 33.

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - [See Criminal Law - Topic 5949 ].

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - [See second Criminal Law - Topic 5848.9 and Criminal Law - Topic 5949 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children (incl. child pornography) - [See Criminal Law - Topic 5949 ].

Criminal Law - Topic 5848.9

Sentencing - Considerations on imposing sentence - Sexual offences against children (incl. child pornography) - The 31 year old accused was convicted of sexual interference and invitation to sexual touching (the present charges) regarding the 14 year old complainant, toward whom the accused was in a position of trust - In sentencing the accused to 2.5 years' imprisonment, the sentencing judge indicated that sentencing guidelines dealing with a major sexual assault of a child were relevant only in cases of sexual assault and not in cases of sexual interference - The Manitoba Court of Appeal disagreed - Whether the charge was sexual interference or sexual assault, the jurisprudence indicated that the starting point for sentencing consideration was four to five years for the major sexual assault of a child by a person in a position of trust, assuming that the accused was a mature person with no criminal record and of good prior character - If the conduct supporting a child sexual abuse conviction met the elements of a major sexual assault, the court would consider the precedents established with respect to major sexual assaults - Equating child sexual assault and sexual interference sentences where the accused's conduct was similar was congruent with the sentencing principles set out in ss. 718.01 and 718.2 of the Criminal Code - See paragraphs 34 to 53.

Criminal Law - Topic 5834.2

Sentencing - Considerations on imposing sentence - Effect on victim (incl. victim impact statements) - [See Criminal Law - Topic 5949 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle and sentencing ranges) - [See second Criminal Law - Topic 5848.9 ].

Criminal Law - Topic 5949

Sentence - Sexual interference or exploitation by person in position of trust or authority - The 31 year old accused was convicted of sexual interference and invitation to sexual touching (the present charges) regarding the 14 year old complainant, toward whom the accused was in a position of trust - Two years earlier, the accused had been sentenced to two years' imprisonment on charges of criminal harassment and assault regarding the same complainant - On the present charges, the sentencing judge sentenced the accused as if all of the charges had been dealt with at the same time - An appropriate sentence for the present charges was three years - The global sentence for all of the charges would have been five years, which would have been reduced by six months under the totality principle - Accordingly, the judge imposed concurrent sentences of 2.5 years on each of the present charges - The Manitoba Court of Appeal allowed the Crown's appeal, varying the sentence to four years - The judge had erred in applying the totality principle and in refusing to consider the relevant jurisprudence - The court was entitled to consider the matter anew - This was a serious sexual violation of a child by an accused in a position of trust that lasted over 16 months and involved acts of masturbation, oral sex and anal sex - The abuse of trust was particularly egregious - The accused's lack of insight placed him at a high risk to reoffend - Aggravating factors included that the victim was under the age of 18 and that the offence had a significant impact on him - See paragraphs 54 to 72.

Criminal Law - Topic 5950

Sentence - Sexual interference with young person - [See Criminal Law - Topic 5949 ].

Criminal Law - Topic 5963

Sentence - Inviting sexual touching - [See Criminal Law - Topic 5949 ].

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - [See Criminal Law - Topic 5949 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 7].

R. v. James (G.M.) (2013), 288 Man.R.(2d) 269; 564 W.A.C. 269; 2013 MBCA 14, refd to. [para. 9].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 12].

R. v. Ruizfuentes (H.S.) (2010), 258 Man.R.(2d) 220; 499 W.A.C. 220; 2010 MBCA 90, refd to. [para. 12].

R. v. Gabriel (Q.J.) (2013), 291 Man.R.(2d) 291; 570 W.A.C. 291; 2013 MBCA 45, refd to. [para. 12].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 13].

R. v. Smoke (D.D.) (2014), 310 Man.R.(2d) 123; 618 W.A.C. 123; 2014 MBCA 91, refd to. [para. 13].

R. v. Johnson (F.) (2012), 291 O.A.C. 350; 2012 ONCA 339, refd to. [para. 13].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 15].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201; 2000 SCC 43, refd to. [para. 24].

R. v. Saran (J.S.) (1996), 113 Man.R.(2d) 205; 131 W.A.C. 205 (C.A.), refd to. [para. 26].

R. v. Bueger (B.K.) (1994), 48 B.C.A.C. 266; 78 W.A.C. 266 (C.A.), refd to. [para. 28].

R. v. Barrett (A.W.) (2012), 324 Nfld. & P.E.I.R. 246; 1007 A.P.R. 246; 2012 NLCA 46, refd to. [para. 29].

R. v. Johnston, [1989] B.C.J. No. 1542 (C.A.), refd to. [para. 33].

R. v. J.A.G. (2008), 228 Man.R.(2d) 99; 427 W.A.C. 99; 2008 MBCA 55, consd. [para. 34].

R. v. Sandercock (1985), 62 A.R. 382 (C.A.), refd to. [para. 37].

R. v. Myran (L.), [2004] Man.R.(2d) Uned. 8; 2004 MBCA 7, refd to. [para. 38].

R. v. R.W.T. (2006), 208 Man.R.(2d) 60; 383 W.A.C. 60; 2006 MBCA 91, refd to. [para. 38].

R. v. G.S.F. (2009), 236 Man.R.(2d) 51; 448 W.A.C. 51; 2009 MBCA 5, refd to. [para. 38].

R. v. J.R.A. (2012), 280 Man.R.(2d) 123; 548 W.A.C. 123; 2012 MBCA 48, refd to. [para. 38].

R. v. D.K. (1994), 155 A.R. 269; 73 W.A.C. 269 (C.A.), refd to. [para. 42].

R. v. G.B. (2013), 544 A.R. 127; 567 W.A.C. 127; 2013 ABCA 93, refd to. [para. 43].

R. v. Skwarchuk (K.) (2007), 409 A.R. 87; 402 W.A.C. 87; 2007 ABCA 195, refd to. [para. 43].

R. v. R.A.S. (2015), 593 A.R. 340; 637 W.A.C. 340; 2015 ABCA 21, refd to. [para. 43].

R. v. E.S. (2001), 213 Sask.R. 312; 260 W.A.C. 312; 2001 SKCA 38, refd to. [para. 44].

R. v. D.L.M. (2001), 207 Sask.R. 228; 247 W.A.C. 228; 2001 SKCA 39, refd to. [para. 44].

R. v. D.D. (2002), 157 O.A.C. 323 (C.A.), refd to. [para. 45].

R. v. L.C. (1990), 110 N.B.R.(2d) 332; 276 A.P.R. 332 (C.A.), refd to. [para. 46].

R. v. Borkowsky (H.) (2008), 225 Man.R.(2d) 117; 419 W.A.C. 127; 2008 MBCA 2, refd to. [para. 49].

R. v. E.H.M. (2015), 600 A.R. 6; 645 W.A.C. 6; 2015 ABCA 131, refd to. [para. 49].

R. v. B.A. (2008), 238 O.A.C. 198; 2008 ONCA 556, refd to. [para. 64].

R. v. Nash (A.W.) (2009), 340 N.B.R.(2d) 320; 871 A.P.R. 320; 2009 NBCA 7, refd to. [para. 64].

Authors and Works Noticed:

Clewley, Gary R., McDermott, Paul G. and Young, Rachel E., Sentencing: The Practitioner's Guide (2014) (Looseleaf), para. 8.700 [para. 47].

Counsel:

R.N. Malaviya and R.D. Lagimodière, for the appellant;

J.L. Ostapiw and A.J. Braun, for the respondent.

This appeal was heard on January 5, 2015, by Steel, Monnin and Mainella, JJ.A., of the Manitoba Court of Appeal. On May 29, 2015, Steel, J.A., delivered the following judgment for the court.

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39 practice notes
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    • Canada
    • Supreme Court (Canada)
    • 12 Noviembre 2021
    ...1 S.C.R. 61; R. v. Stewart, 2021 ABCA 79, 21 Alta. L.R. (7th) 213; R. v. Gandour, 2018 ABCA 238, 73 Alta. L.R. (6th) 26; R. v. Sidwell, 2015 MBCA 56, 319 Man. R. (2d) 144; R. v. Okimaw, 2016 ABCA 246, 340 C.C.C. (3d) 225; R. v. Kain, 2004 ABCA 127, 35 Alta. L.R. (4th) 5; R. v. Skani, 2002 A......
  • R. v. Friesen, 2020 SCC 9
    • Canada
    • Supreme Court (Canada)
    • 2 Abril 2020
    ...610, 107 O.R. (3d) 81; R. v. S. (J.), 2018 ONCA 675, 142 O.R. (3d) 81; R. v. D. (D.) (2002), 58 O.R. (3d) 788; referred to: R. v. Sidwell, 2015 MBCA 56, 319 Man.R. (2d) 144; R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. ......
  • R. v. Hajar (O.A.), 2016 ABCA 222
    • Canada
    • Court of Appeal (Alberta)
    • 25 Julio 2016
    ...purposes: see R v DK (1994), 155 AR 269 (CA); R v BSM , 2011 ABCA 105, 502 AR 253; R v GRB , 2013 ABCA 93, 544 AR 127; R v Sidwell , 2015 MBCA 56, [2015] 8 WWR 494. Moreover, there was some authority from the Saskatchewan Court of Appeal suggesting that a three-year starting point for major......
  • R. v. L.V., (2016) 480 Sask.R. 181 (CA)
    • Canada
    • Saskatchewan Court of Appeal (Saskatchewan)
    • 13 Junio 2016
    ...sentencing levels for this sort of offence that have been adopted in several other Canadian jurisdictions. See, for example: R v Sidwell, 2015 MBCA 56, [2015] 8 WWR 494; R v D.M., 2012 ONCA 520, 288 CCC (3d) 564; R v S.(W.B.); R v P.(M.) (1992), 73 CCC (3d) 530 (Alta CA). In other words, a ......
  • Request a trial to view additional results
39 cases
  • R. v. Parranto,
    • Canada
    • Supreme Court (Canada)
    • 12 Noviembre 2021
    ...1 S.C.R. 61; R. v. Stewart, 2021 ABCA 79, 21 Alta. L.R. (7th) 213; R. v. Gandour, 2018 ABCA 238, 73 Alta. L.R. (6th) 26; R. v. Sidwell, 2015 MBCA 56, 319 Man. R. (2d) 144; R. v. Okimaw, 2016 ABCA 246, 340 C.C.C. (3d) 225; R. v. Kain, 2004 ABCA 127, 35 Alta. L.R. (4th) 5; R. v. Skani, 2002 A......
  • R. v. Friesen, 2020 SCC 9
    • Canada
    • Supreme Court (Canada)
    • 2 Abril 2020
    ...610, 107 O.R. (3d) 81; R. v. S. (J.), 2018 ONCA 675, 142 O.R. (3d) 81; R. v. D. (D.) (2002), 58 O.R. (3d) 788; referred to: R. v. Sidwell, 2015 MBCA 56, 319 Man.R. (2d) 144; R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. ......
  • R. v. Hajar (O.A.), 2016 ABCA 222
    • Canada
    • Court of Appeal (Alberta)
    • 25 Julio 2016
    ...purposes: see R v DK (1994), 155 AR 269 (CA); R v BSM , 2011 ABCA 105, 502 AR 253; R v GRB , 2013 ABCA 93, 544 AR 127; R v Sidwell , 2015 MBCA 56, [2015] 8 WWR 494. Moreover, there was some authority from the Saskatchewan Court of Appeal suggesting that a three-year starting point for major......
  • R. v. L.V., (2016) 480 Sask.R. 181 (CA)
    • Canada
    • Saskatchewan Court of Appeal (Saskatchewan)
    • 13 Junio 2016
    ...sentencing levels for this sort of offence that have been adopted in several other Canadian jurisdictions. See, for example: R v Sidwell, 2015 MBCA 56, [2015] 8 WWR 494; R v D.M., 2012 ONCA 520, 288 CCC (3d) 564; R v S.(W.B.); R v P.(M.) (1992), 73 CCC (3d) 530 (Alta CA). In other words, a ......
  • Request a trial to view additional results

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