Criminal - Sentencing - Sex Offences
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. R. v. Bertrand Marchand
In R. v. Bertrand Marchand (SCC, 2023) the Supreme Court of Canada strikes down the 'child luring' mandatory minimum sentencing provisions of CCC 172.1(2)(a-b) under Charter s.12 ['cruel and unusual treatment or punishment'].
In this quote the court states basic law and recent developments respecting criminal sentencing for child abuse, including child luring and other child sex offences:
 Parliament has specifically indicated that in sentencing offences involving abuse of children, including child luring, the objectives of denunciation and deterrence must be given primary consideration or “une attention particulière” (Friesen, at para. 101; Criminal Code, s. 718.01). Section 718.01’s open textured language limits judicial discretion by giving priority to these objectives, but their primary importance does not exclude consideration of other sentencing objectives, including rehabilitation (Rayo, at paras. 102-8). The judge can accord significant weight to other factors, but cannot give them precedence or equivalency (Friesen, at para. 104, citing Rayo, at paras. 103 and 107-8; see also R. v. J. (T.), 2021 ONCA 392, 156 O.R. (3d) 161, at para. 27).. R. v. R.K.
 In Friesen, the offender was sentenced for sexual interference with a four‑year‑old child and the subsequent extortion of the child’s mother. The Court noted expressly that, given these facts, its primary focus was to provide direction on how to impose fit and proportionate sentences for sexual interference “and closely related offences”, like sexual assault and incest (para. 44).
 Friesen recognized that the focus of the legislative scheme of sexual offences against children has shifted to protect a child’s personal autonomy, bodily integrity, sexual integrity, dignity and equality (paras. 51 and 55, citing E. Craig, Troubling Sex: Towards a Legal Theory of Sexual Integrity (2012), at p. 68; see also R. v. Sharpe, 2001 SCC 2,  1 S.C.R. 45, at paras. 172, 174 and 185, per L’Heureux-Dubé, Gonthier and Bastarache JJ.). The Court outlined how sexual offences against children produce profound physical and psychological harms to the most vulnerable members of our society. It was deeply concerned with how the sexual assault of children may produce shame, embarrassment, unresolved anger, a reduced ability to trust and fear that other people would also abuse them (Friesen, at para. 57). It set out the disproportionate impact of violence on girls, women, Indigenous persons and other vulnerable groups.
 Friesen sends the clear message that sentences for these crimes must account for the far-reaching and ongoing damage sexual violence causes to children, families and society at large, which may take many years to manifest. Consequently, sentences for offences involving sexual violence against children must generally increase to reflect society’s modern understanding of such offences and Parliament’s choice to increase the sentences associated with these crimes (paras. 3-5).
 Friesen sets out a useful method of analysis which places children, and the harm they suffer, at the centre of the discussion. Its message is not limited to offences which include physical contact. Instead, its general framework and lessons can be applied to sentencing other forms of sexual abuse of children. Indeed, its sentencing principles “also have relevance to sentencing for other sexual offences against children, such as child luring” (para. 44; see also paras. 46-47).
 In applying Friesen’s principles to the offence of child luring, I explore its inherent wrongfulness and distinct harms and the legislative trend towards increasingly punitive sentences.
(3) Parliament Has Mandated That Sentences for Luring Must Increase
 Friesen urges courts to consider Parliament’s legislative initiatives in sentencing offenders for sexual offences against children (para. 107). Parliament has consistently raised these sentences to reflect a growing awareness of their gravity, and to indicate the serious emotional and psychological harms they cause for victims (paras. 56, 98 and 101-5). This same increasingly punitive trend applies to the sentencing regime for luring offences:
. In 2002, when enacting the offence of luring, Parliament provided for a maximum term of five years’ imprisonment for luring proceeding by indictment (Criminal Law Amendment Act, 2001, s. 8). No maximum penalty was set for luring proceeding summarily. These legislative changes should be regarded as a sign of Parliament’s view of the offence’s gravity (Rayo, at para. 125). They make clear that proportionate sentencing that responds to the gravity of the luring offence and the degree of responsibility of the offender will often require substantial sentences of imprisonment. As a result, 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 (Friesen, at para. 110).
. In 2005, Parliament enacted s. 718.01 of the Criminal Code which provides that the objectives of denunciation and deterrence take priority in cases of the abuse of a person under 18 (An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32, s. 24; Criminal Code, s. 718.01).
. In 2007, the maximum sentence for luring proceeding by indictment was increased to 10 years’ imprisonment and a maximum sentence of 18 months’ imprisonment was introduced for luring proceeding summarily (An Act to amend the Criminal Code (luring a child), S.C. 2007, c. 20, s. 1).
. In 2012, mandatory minimum sentences for child luring were introduced (Safe Streets and Communities Act, s. 22). As a result, child luring proceeding by indictment carried a mandatory minimum punishment of one year’s imprisonment, and luring proceeding summarily carried a mandatory minimum punishment of 90 days’ imprisonment.
. In 2015, with the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, s. 11, Parliament elevated the maximum sentence for luring proceeding by indictment to 14 years’ imprisonment. The maximum sentence for luring proceeding summarily was increased from 18 months to 2 years’ less a day imprisonment and the mandatory minimum punishment was increased to 6 months’ imprisonment.
(1) Significant Factors to Determine a Fit Sentence
 In addition to determining the gravity of the offence, determining the moral blameworthiness of the offender is key to setting a proportionate sentence. This requires identifying both mitigating and aggravating factors. Here, in order to examine Mr. Bertrand Marchand’s blameworthiness and set a proportionate sentence, I provide a non-exhaustive list of aggravating and mitigating factors that have particular relevance in the context of luring.
(a) Mitigating Factors
 Sentencing judges must consider the mitigating factors that arise on the facts of the particular case before them. Mitigating factors that commonly appear in luring cases include whether the offender pleaded guilty (see, e.g., Misay, at para. 141; Melrose, at para. 264; Wall, at para. 75; R. v. Ditoro, 2021 ONCJ 540, at para. 43 (CanLII); R. v. Gould, 2022 ONCJ 187; R. v. Cooper, 2023 ONSC 875, at para. 17 (CanLII); R. v. Clarke, 2021 NLCA 8, at para. 53 (CanLII); R.S.F., at para. 103; R. v. Aeichele, 2023 BCSC 253, at para. 61 (CanLII); R. v. Wolff, 2020 BCPC 174, at para. 64 (CanLII)), whether the offender has expressed genuine remorse or gained insight into the offence (see, e.g., Directeur des poursuites criminelles et pénales v. St-Amour, 2021 QCCQ 6855, at para. 43 (CanLII); Wall, at para. 75; Ditoro, at para. 59; Misay, at para. 150; Gould; R. v. Rice, 2022 ABKB 773, at para. 48 (CanLII); Clarke, at para. 53; R.S.F., at para. 105; Wolff, at para. 67), and whether the offender has undertaken rehabilitative steps such as counselling or treatment (see, e.g., R.S.F., at para. 103; R. v. Wickramasinghe, 2022 ONCJ 331, at para. 25 (CanLII); Gould; R. v. Rasiah, 2021 ONCJ 584, at para. 42 (CanLII)). Here, in her analysis of the sentence for the sexual interference count, the sentencing judge considered the pre-sentence report and rightly accounted for Mr. Bertrand Marchand’s guilty plea, lack of prior convictions, honesty and cooperation throughout the sentencing process, factors which were also relevant to the luring offence.
 The personal circumstances of the offender can also have a mitigating effect on blameworthiness (Friesen, at paras. 91-92). In the context of determining the appropriate sentence overall, the sentencing judge in this case accounted for Mr. Bertrand Marchand’s age at the time of the events, his stable family life, and the fact that he had maintained stable employment for around three years. Mr. Bertrand Marchand overcame a substance use disorder during adolescence. At the time, this caused him health problems and panic attacks (sentencing reasons, at para. 22). An offender might have a mental disability or substance use disorder that imposes serious cognitive limitations, such that their moral culpability is reduced (Friesen, at para. 91; see, e.g., Hood, at para. 180; Melrose, at paras. 223-35; R. v. Osadchuk, 2020 QCCQ 2166, at paras. 51-55 (CanLII); R. v. Deren, 2021 ABPC 84, at paras. 44 and 51 (CanLII); R. v. Sinclair, 2022 MBPC 40, at paras. 15 and 67 (CanLII); Wolff, at para. 65). However, this factor is not as mitigating in Mr. Bertrand Marchand’s circumstances as his substance use did not overlap with the material time period (unlike Sinclair, at para. 67; Wolff, at para. 65).
(b) Aggravating Factors
 As articulated above, the sentencing judge erred in principle by failing to account for the fact that the offender’s actions caused the victim distinct psychological harm. Mr. Bertrand Marchand’s manipulation and grooming are both aggravating factors that increase his moral blameworthiness.
 Here, no formal victim impact statement was adduced at sentencing. Nevertheless, even where evidence of actual harm to the victim is not admitted, harm can still be inferred. This Court instructed that “sexual violence against children inherently has the potential to cause several recognized forms of harm. . . . [T]he potential that these forms of harm will materialize is always present whenever there is physical interference of a sexual nature with a child and can be present even in sexual offences against children that do not require or involve physical interference” (Friesen, at para. 79). The potential for reasonably foreseeable harm must be considered on sentencing even where the luring results in no actual harm (para. 84).
 Where there is no direct evidence of actual harm to the victim, “[c]ourts may be able to find actual harm based on the numerous factual circumstances that can cause additional harm and constitute aggravating factors” (para. 86). In other words, sentencing judges can infer the likelihood of actual harm where there are aggravating factors such as grooming (see, e.g., R. v. Pentecost, 2020 NSSC 277, at paras. 50-54 (CanLII)).
(ii) Character of the Communication
 The character of the communication is relevant to the blameworthiness of the conduct. In this appeal, the period for the count of luring on the indictment spans nearly seven months. During this time, hundreds of messages were exchanged between the respondent and the victim. The duration and frequency of the communications are important to the extent that they may generate cumulative or more severe harms, and increase the gravity of the offence and the moral blameworthiness of the offender. Because repeated and prolonged acts of sexual violence increase the long-term harm suffered by the victim (Friesen, at para. 131), sending a large volume of messages, or sending messages in a persistent and unrelenting way, is aggravating (R. v. Collier, 2021 ONSC 6827, at para. 75 (CanLII); R. v. Kavanagh, 2023 ONSC 283, at para. 84 (CanLII); R. v. Moolla, 2021 ONSC 3702, at para. 22 (CanLII); R. v. E.F., 2021 ABQB 272; R. v. Battieste, 2022 ONCJ 573, at para. 45 (CanLII)). In addition, while a shorter duration of communication is not a mitigating factor, maintaining online communications for a long period of time is aggravating (R. v. Faille, 2021 QCCQ 4945, at paras. 68-70 (CanLII)).
 The substance of the communication is relevant when sentencing. Here, Mr. Bertrand Marchand often sent sexually explicit and objectifying messages to the victim. Graphic sexual content is clearly aggravating, but so is communication where the offender manipulates through language about love and affection (Wolff; R. v. Saberi, 2021 ONCJ 345, 493 C.R.R. (2d) 121; R. v. Boucher, 2020 ABCA 208). It is also aggravating for the offender to rely on trickery, lies or manipulation to lure the victim (Collier, at para. 77).
 Encouraging a child to share images of themselves or sending explicit images to the child also heightens blameworthiness and may serve as an aggravating factor on sentencing with respect to the luring offence (Collier; Kavanagh; R. v. Kalliraq, 2022 NUCA 6; R. v. Razon, 2021 ONCJ 616; Deren). Mr. Bertrand Marchand encouraged the victim on numerous occasions to send explicit photos of herself through Snapchat, which he mentioned saving to his phone (A.R., vol. II, at p. 124). The duration and frequency of the communications, along with the sexually explicit nature of the messages and the repeated requests for explicit photos, are all aggravating factors in this case (Collier; Kavanagh; Kalliraq; Razon; Deren).
 Deceit can present itself in many forms and is aggravating. Where an offender relies on anonymity, for example by using a false name, identity, or age, then the conduct is more blameworthy (Pentecost; R. v. Coban, 2022 BCSC 1810; Ditoro; R. v. Bains, 2021 ABPC 20; Cooper; Collier; Montour v. R., 2020 QCCA 1648). However, not every offender operates under the shield of anonymity. In this case, Mr. Bertrand Marchand met the victim in person and used his real identity when adding her on Facebook. Depending on the circumstances, a vulnerable child’s trust may be won by either lying about one’s identity or by exploiting a pre-existing relationship (Rayo, at paras. 92-93).
 The communication itself might also include deceitful tactics. In some cases, an offender may instruct the victim to erase the communication to conceal the luring, or to refrain from sharing the messages with parents or family members (Saberi; R. v. LaFrance, 2022 ABCA 351). An offender may also tell the victim to dress more maturely when they meet in person (Saberi). It is further aggravating for an offender to intentionally choose a platform that erases records of communication in order to avoid detection (see J.R.), or to suggest a more secure platform after learning of the child’s age (Rasiah). In this case, Mr. Bertrand Marchand asked the victim to send him explicit photos on Snapchat, a platform that erases records of communication. However, photos were also exchanged throughout their communication on Facebook. This suggests that the intention to avoid detection is not present here.
(iv) Abuse of a Position or Relationship of Trust
 The jurisprudence provides several examples of traditional positions of authority that may be exploited, including that of a parent (see, e.g., J.R.), teacher (see, e.g., Pentecost; Faille; R. v. Jissink, 2021 ABQB 102, 482 C.R.R. (2d) 167), or family friend (see, e.g., Rayo; R. v. Lemay, 2020 ABCA 365, 14 Alta. L.R. (7th) 45; Boucher). However, positions of trust fall on a spectrum, and a relationship of trust of any kind may facilitate the commission of the offence (Rayo, at paras. 87 and 96; Friesen, at para. 125). Prior relationships can be leveraged to provide an entry, form a basis of trust, build confidence, and can make it easier to manipulate the victim — often because the offender knows more about the victim, including any additional vulnerabilities, like the victim’s family situation. In cases where an offender uses a pre-existing relationship in order to exploit pre-existing trust, a breach of this trust is “likely to increase the harm to the victim and thus the gravity of the offence” (Friesen, at para. 126).
 In many cases of luring the offender is intentionally attempting to build a relationship of trust, move an existing trust relationship onto sexual terrain, or build secrecy. The eventual breach of trust may produce feelings of fear and shame, discourage reporting and undermine relationships. When an offender exploits his role as the confidante or friend in order to gain a victim’s trust for the purposes of facilitating sexual contact, this increases his degree of responsibility (R.S.F.; Rayo, at paras. 87 and 96).
 Mr. Bertrand Marchand and the victim met in person through mutual friends, then communicated online. He had illegal intercourse with her three times prior to engaging in the online communications that led to the luring charge. The luring count, therefore, does not encompass the three instances of sexual interference that preceded it. As the appellants remarked in written submissions, the fact that the underlying offence occurred three times before the start of the luring does not diminish the seriousness of the subsequent communications (A.F., at paras. 34-48). This pre-existing relationship opened the door to the Facebook communications and allowed Mr. Bertrand Marchand to access the victim. The respondent exploited the pre-existing trust he had established with the victim when they first met.
(v) Age of the Victim
 The age of the child victim may also be an aggravating factor. Per s. 718.2(a)(ii.1) of the Criminal Code, abuse of a person under 18 years is a statutorily aggravating circumstance. While luring will always involve a child, practically speaking it requires a child of an age who can access and use telecommunications. As such, very young children and infants are rarely victims of this offence. Instead, luring will often involve adolescent victims. Sentencing judges should heed the caution in Friesen that courts must “be particularly careful to impose proportionate sentences in cases where the victim is an adolescent” because disproportionately low sentences have historically been imposed in these cases (para. 136).
 Luring involves an inherent power imbalance between the adult using technology and the unsupervised child or adolescent receiving their messages. In Friesen, this Court discussed the pronounced power imbalance between adults and children who are “often helpless without the protection and care of their parents” (para. 134). Though the victim in this case was an adolescent and not a young child, she was under the care of the Director of Youth Protection when she was targeted by Mr. Bertrand Marchand, making her exceptionally vulnerable in the circumstances.
 Further, a wide gap in age between the offender and victim increases blameworthiness (see, e.g., Misay, at para. 61; Faille, at para. 74; Jissink, at para. 52; R. v. Aguilar, 2021 ONCJ 87, at para. 21 (CanLII), aff’d 2022 ONCA 353, at para. 14 (CanLII)). Here, Mr. Bertrand Marchand is nine years older than the victim, who was in her early teenage years at the start of the indictable period. He was aware of her age from the start and mentioned her youth several times. The significant age gap and the victim’s severe vulnerability are both aggravating factors.
In R. v. R.K. (Ont CA, 2023) the Court of Appeal considered sentencing, here in a conviction for sexual interference:
 In R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), at para. 44, this court held that upper single digit to low double digit penitentiary terms will generally be appropriate for regular and persistent sexual abuse of a child that, as here, includes intercourse and other physical violence and is perpetrated by an adult in a position of trust. More recently in R. v. Friesen, 2020 SCC 9,  1 S.C.R. 424, at para. 114, the Supreme Court of Canada confirmed that upper-single digit penitentiary terms for sexual offences against children should be neither unusual nor reserved for rare or exceptional circumstances.. R. v. W.V.
In R. v. W.V. (Ont CA, 2023) the Court of Appeal considered a Crown sentencing appeal from a conviction for sexual assault, here in a joint trial of several defendants where "a central common issue was the complainant’s capacity to consent to the sexual activity in question":
 The Crown appeals the three-year sentence on two principal grounds. The Crown argues that the sentence fails to give meaningful effect to the guiding principles applicable to sentences for sexual offences involving children, as articulated by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9,  1 S.C.R. 424. It was not disputed either below or in this court that those principles apply in the circumstances of this case because of the complainant’s developmental disabilities. The Crown also argues that the sentence is demonstrably unfit since it failed to reflect the gravity of the offence and the respondent’s high moral blameworthiness.
 While sentencing determinations are owed considerable deference on appeal, appellate intervention is justified where the sentence imposed is demonstrably unfit or there is an error in principle that had a material impact on the sentence imposed.
 I would allow the appeal on both grounds advanced by the Crown. The sentencing judge acknowledged that the Friesen principles applied, given that the complainant had the mental age of a 7–8-year-old child, but failed to give proper effect to those principles. Instead of recognizing the inherent wrongfulness of the respondent’s behaviour, the sentencing judge imposed a sentence at the low-end of the range on the basis that the respondent did not sexually objectify C.B. and, instead, treated her “generously.” This amounted to an error in principle, contrary to Friesen’s clear direction that sexual violence against children is always inherently wrongful, and this error had a material impact on the sentence imposed. The three-year sentence was also demonstrably unfit since it failed to recognize the gravity of the offence and the respondent’s moral blameworthiness.
E. GOVERNING PRINCIPLES
1. Standard of review
 Sentencing determinations are owed considerable deference on appeal. Appellate intervention is justified only where (i) the sentence imposed is demonstrably unfit; or (ii) there is an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor, and it appears from the trial judge’s decision that such an error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64,  3 S.C.R. 1089, at paras. 44, 51; Friesen, at paras. 26-28.
 It should also be noted that an appellate court may not intervene in a sentencing decision simply because it would have weighed the relevant factors differently. The choice of the sentencing range, or of a category within a range, falls within the trial judge’s discretion and cannot, in itself, constitute a reversible error.
 If a sentence is demonstrably unfit or if a sentencing judge made an error in principle that had an impact on the sentence, the appellate court must perform its own sentencing analysis to determine a fit sentence: Friesen, at para. 27. However, in sentencing afresh, the appellate court will defer to the sentencing judge’s findings of fact or identification of aggravating and mitigating factors, to the extent they are not affected by the error in principle.
2. The Friesen Principles
 Friesen sent a clear message that sexual offences against children cause profound harm to the victims and that, accordingly, sentences for such offences must increase to match Parliament’s view of their gravity. The Supreme Court emphasized that sexual offences against children are inherently wrongful and always put children at risk of serious harm. Substantial sentences are required, and it is not open to sentencing judges to elevate other sentencing objectives to an equal or higher priority than those of denunciation and deterrence: Friesen, at paras. 101, 116, 145, 151.
 The sentencing principles outlined in Friesen extend equally to sexual offences against adults who, by virtue of a physical or cognitive disability, are vulnerable to sexual exploitation akin to that of a child. Friesen pointed out that children and youth with disabilities are especially vulnerable because “they may be perceived as easier to victimize, may not be able to fully understand or communicate what has happened to them, and face barriers to reporting”: Friesen, at para. 72. The same reasoning applies with equal force to adults with disabilities, as the British Columbia Court of Appeal recently concluded in R. v. C.C.H., 2020 BCCA 162, at paras. 27-29.
 Friesen also held that it is an error to characterize sexual offences against children that involve a participating victim as free of physical or psychological violence. To the contrary, violence is inherent in such offences since they necessarily involve an adult’s serious violation of a child’s sexual integrity, human dignity and privacy. Thus, the fact that “additional forms of violence such as weapons, intimidation, and additional physical assault may not be present does not provide a basis to ignore the inherent violence of sexual offences against children”: Friesen at para. 152.
 Put another way, the absence of certain aggravating factors, such as additional violence, is not itself a mitigating factor, nor does it reduce the moral blameworthiness of the offender.
1. The sentencing judge failed to properly consider the inherent harmfulness and wrongfulness of the respondent’s conduct
 As the earlier discussion of Friesen makes plain, sexual offences involving children or adults with severe cognitive disabilities that make them incapable of consenting are always exploitative and inherently wrongful. Moreover, violence is inherent in such offences, which invade and negate a vulnerable victim’s personal autonomy and integrity, even if additional forms of violence such as intimidation or physical assault are not present.
2. The sentence was demonstrably unfit
 In Friesen, the Supreme Court indicated that mid-single digit penitentiary terms for sexual offences against children are normal and upper-single-digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances: Friesen at para. 141.
 In this case, a substantial penitentiary sentence was required given the presence of a number of significant aggravating factors. These include the fact that the respondent sexually assaulted C.B. repeatedly over a period of almost one year; the sexual assaults were invasive, involving sexual intercourse and oral sex; the respondent video recorded two of the sexual assaults, creating a record of the abuse; and the victim was extremely vulnerable and dependent on the respondent for basic necessities, a vulnerability that was exploited by him.
G. WHAT IS A FIT SENTENCE?
 In my view, the sentence imposed must be set aside on both of the grounds advanced by the Crown. Given that, this court is required to perform its own sentencing analysis to determine a fit sentence for the respondent.
 The Crown renews its position that a sentence of eight years is appropriate, relying on a number of cases decided post-Friesen with similar aggravating factors: R. v. Nahanee, 2022 SCC 37, 418 C.C.C. (3d) 417 (global sentence of eight years upheld for a series of sexual assaults of two victims, who were the offender’s Indigenous teenaged nieces); R v. B.M., 2023 ONCA 224, (sentence increased on appeal to seven years for the sexual abuse of two 12-year-old children continuing over a period of 43 months).
 The defence argues that the cases relied upon by the Crown are distinguishable, either because they involved more than one victim or extended for a longer period of time than the case at hand. The defence maintains that a sentence in the range of three years is appropriate, relying on R. v. G.F., 2022 ONCA 44, where this court upheld sentences of 3 and 3.5 years for a prolonged sexual assault against a 16-year-old complainant.
 In my view none of the cases cited by counsel are precisely analogous to the circumstances in the present case. For example, G.F. was a defence appeal in which there was a single incident involving offenders with no prior criminal record, circumstances which clearly distinguish G.F. from the present case.
 Nor, for reasons of parity, would I accede to the Crown’s request for an eight-year sentence. I note that C.G.B., whose conduct was much more aggravating than the respondent’s, received a sentence of 9 years, while the other 2 co-accused received sentences of 3.5 years each. The Crown has not appealed any of those sentences.
 I find that a six-year prison term is a fit sentence in the circumstances of this case. This sentence gives priority to the principles of denunciation and deterrence as mandated by ss. 718.01 and 718.04, as well as by Friesen, while also taking appropriate account of the parity principle.