New & Notable: Yet another message from a Court of many more do we need?

James is yet another decision which illustrates the seriousness of the consequences which flow from sexual assault perpetrated against a child. In recent blogs the approach by appellate courts in Ontario, Saskatchewan and Alberta has been discussed [see Strong Message to Those Who Sexually Abuse Children and Yet Another Court of Appeal Sending a Strong Message about Sexual Assault]; now Manitoba can be added to that list: 2013 MBCA 14.


James was at various times a scout, hockey coach and general manager of various teams in the Western Hockey League.  James recruited Theoren Fleury and Todd Holt. Both young men left their homes and families to pursue their dream of becoming professional hockey players. The boys were billeted to families in the communities in which they played – James selected the families. Two nights per week the boys were required to stay with James ostensibly for the purpose of academic tutoring – no such tutoring ever took place.

The sexual assaults took place between 1989 and 1994 during the hockey season and on some occasions in the off-season. Both boys sustained repeated and frequent sexual assaults involving hundreds of incidents which included fellatio and masturbation.

James pled guilty to two counts of sexual assault and was sentenced to two years incarceration on each count to be served concurrently. The Crown appealed.

The Crown raised three issues on appeal. First, the trial judge erred in the approach taken in sentencing the accused. Second, the trial judge misapplied the totality principle. Third, that the sentence imposed was unfit.

Before dealing with each of the arguments raised by the Crown, MacInnes JA offered some insightful comments on the oft heard refrain about the uniqueness of a particular case. MacInnes JA explained that the trial judge was:

…overly fixated on what she described on several occasions as the unique nature of this case. The fact is, however, that every sentencing is unique. It has to be in order to comply with the principle of proportionality. No two offences or offenders are exactly alike. There are always some differences and to that extent, every sentence is unique to the particular case in question [para 52].

The approach taken by the trial was largely influenced by the fact that in 1997 James had been convicted and sentenced to 3.5 years for similar offences perpetrated against two other young hockey players. The sentencing judge decided that as a starting point she was obliged to consider what total sentence James would have received in 1997 if he had been sentenced on the charges pertaining to all four victims. The Manitoba Court of Appeal held that this was an error in principle [para 55].

The starting point for her analysis should have been to focus upon the offences before her, not what happened in the past or may have happened if the accused had been sentenced for all four offences in 1997. She should have first determined whether the offences against Mr. Fleury and Mr. Holt were to be served consecutively or not, and following the principles of sentencing, determined an appropriate sentence for each of those offences. If consecutive, she should then have considered the principle of totality [para 56].

With respect to the totality principle and the fitness of the sentence, the Court of Appeal held that the trial judge erred by failing to adequately analyze the criteria for the application of the totality principle.

Rather, her sentence was imposed, if I may say, via the back door by determining a hypothetical sentence of six years, using that as a cap, and then deducting the three and a half years previously served, together with some other minor credits, resulting in a balance which fell within the hypothetical six years, namely, two years, a sentence which, in my opinion, was clearly unfit [para 67].

Having found that the sentencing judge erred, the Court of Appeal held that it was entitled to consider the sentence afresh:

[I]n light of the errors made by the sentencing judge and the unfit sentence which resulted, no deference is owed to her decision, and this court may proceed to sentence afresh [para 68].

The Court concluded as follows in regards to the appropriate sentence:

[A]n eight-year sentence without adjustment for totality would, in all of the circumstances, be a crushing sentence not in keeping with the accused's record and prospects. Accordingly, I would apply the totality principle and reduce the eight-year sentence to one of five years in the penitentiary. The five-year sentence will be apportioned two and one-half years consecutive in respect of the assaults against each of Mr. Fleury and Mr. Holt [para 77].

An interesting feature of this particular case, which is quite unlike the majority of reported sexual assault jurisprudence, is that the names of the victims, Mr. Fleury and Mr. Holt, are published. Section 486.4 of the Criminal Code prohibits the publication of the names of complainants or witnesses in such cases where the prosecutor or the complainant applies to the court. In this case Mr. Fleury and Mr. Holt both have spoken publically about the allegations, using their status as hockey players to encourage other victims to come forward.