Sentencing for Child Sexual Offences

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See also: Sexual Offences (Sentencing)

Youthful and Child Victims

See also: Victims as a Factor in Sentencing

Parliament has "made is very clear taht the protection of children is a basic value of Canadian Ssociety which the courts must defend".[1] The courts are being called upon to focus on chlid exploitaitno offences is becuas eof their increasing number.[2]

Child Victims Different From Adult Victims

Sentencing judges should not rely upon prior similar caselaw wherein the victim is an adult as an example of parity.[3]

Technology and Opportunity

The advent of social media and communication technology has increased the opportunities to victimize children.[4]

Inherent exploitation

Any sexual contact between the child and adult is de facto exploitative nature.[5]

Females and Marginalized Groups

Victims who are female or from marginalized communities are recognized as being at greatest risk.[6]

Harm Caused by Sexual Offences

The recognized harm of sexual offences upon children is "profound" and include: [7]

  • overly compliant behaviour and an intense need to please;
  • self-destructive behaviour, such as suicide, self-mutilation, chemical abuse, and prostitution;
  • loss of patience and frequent temper tantrums;
  • acting out aggressive behaviour and frustration;
  • sexually aggressive behaviour;
  • an inability to make friends and non-participation in school activities;
  • guilty feelings and shame;
  • a lack of trust, particularly with significant others;
  • low self-esteem;
  • an inability to concentrate in school and a sudden drop in school performance;
  • an extraordinary fear of males;
  • running away from home;
  • sleep disturbances and nightmares;
  • regressive behaviours, such as bedwetting, clinging behaviour, thumb sucking, and baby talk;
  • anxiety and extreme levels of fear; and
  • depression.

There is an increased risk that the victim in adulthood will engage in sexual violence themselves.[8]

Harm Beyond Victim

The harm also spreads beyond the victim. It will harm the victim's family, community, and society at large.[9]

Actual Harm and Potential Harm

The court can go beyond measuring actual harm and consider potential harm as the full harm cannot be known at the time of sentencing.[10]

Seriousness of Sexual Offences Against Young Victims

Children are a "priceless asset". It is "extremely important" to denounce any conduct that takes advantage of their vulnerability.[11]

It is suggested that "force is inherent in all sexual assaults on children".[12]

Many courts have expressed society's concern for crimes, including sexual offences, against children.[13]

Predatory sexual offences are those class of sexual offences where the offender uses the imbalance of power between himself and a victim, usually children, to satisfy sexual needs by way of a criminal offence.

Absent exceptional circumstances, denunciation, general and specific deterrence, and the need to separate offenders from society, take precedence over all other objectives of sentencing.[14]

Children are recognized as one of the "most valued and most vulnerable assets." They are generally incapable of defending themselves and so are easily targeted.[15] It is for this reason that courts must focus on protecting children.[16]

Children are vulnerable as they cannot protect themselves.[17]

A child is inherently vulnerable. Accordingly, they can be coerced without threats ever being articulated.[18]

Primary objectives

Section 718.01 directs courts to give primacy to denunciation and deterrence for offences that involve "the abuse of a person under the age of 18 years". [19] This section simply codifies already existing principles.[20]

Denunciation and deterrence have the highest priority in sentencing for offences involving the abuse of children.[21]

Rehabilitative factors must still be considered.[22] However, the principles of restraint and rehabilitation are still a factor but are secondary for offences involving young victims.[23]

It is prohibited to put any secondary objective above denunciation and deterrence.[24]

  1. R v Allen, 2012 BCCA 377 (CanLII), per Ryan JA, at para 60(complete citation pending)
  2. R v B(R), 2013 ONCA 36 (CanLII), per LaForme JA, at paras 26 to 28(complete citation pending)
  3. R v Friesen, 2020 SCC 9 (CanLII), per Wagner CJ and Rowe J, at para 116
  4. Friesen, ibid., at paras 46 to 48
  5. Friesen, ibid., at para 53
  6. Friesen, ibid., at paras 68, 70 to 73
  7. Friesen, ibid., at para 80
    infra
  8. Friesen, ibid., at para 64
  9. Friesen, ibid., at paras 60 to 64
  10. Friesen, supra, at paras 79 to 86
  11. R v DG, 2014 BCCA 84 (CanLII), per Bennett JA, at para 37
    R v SCW, 2019 BCCA 405 (CanLII), per Goepel JA, at para 22
  12. R v CT, 2008 NLTD 112 (CanLII), 846 APR 314, per Goulding J, at para 36
  13. see R v Springer, 1988 CanLII 8011 (NB CA), 88 NBR (2d) 177
    R v DC and M.G, 2009 NBCA 59 (CanLII), per Deschênes JA (3:0)
  14. R v DD, 2002 CanLII 44915 (ON CA), , 163 CCC (3d) 471, per Moldaver JA (3:0), at paras 33 to 45
    R v Woodward, 2011 ONCA 610 (CanLII), per Moldaver JA (3:0), at paras 75 to 77
  15. DD, supra, at para 35
  16. R v Nisbet, 2011 ONCA 26 (CanLII), per curiam (3:0) (Child pornography is "an abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence.")
  17. R v DVB, 2010 ONCA 291 (CanLII), 215 CCC (3d) 505, per Moldaver JA (3:0), at para 81 ("Children cannot protect themselves. They are generally vulnerable and helpless. When it comes to their safety, we must be vigilant")
  18. R v Taylor, 1995 CanLII 10546 (NLSCTD), 134 Nfld. & PEIR 181 (Nfld. T.D.), per Mercer J, at para 8 (" the courts have recognized that in a situation involving an adult, particularly where the adult is in a position of trust, the child is in an inherently vulnerable position and threats do not have to be articulated for the child to feel coercion")
  19. NB: this section came into force by 2005, c. 32, s. 24.
    R v Inksetter, 2018 ONCA 474 (CanLII), per Hoy ACJ, at para 16
    see R v Friesen, 2020 SCC 9 (CanLII), per J, at para 104
  20. R v GJO, 2006 NLTD 90 (CanLII), per Seaborn J, at para 26 ("As to general deterrence, s. 718.01, a recent amendment to the Criminal Code, codifies the existing sentencing law in mandating that in sentencing for offences, such as these, which involved the abuse of persons under 18 years of age, primary consideration is to be given to the objectives of denunciation and deterrence.")
    R v Cazon, 2006 NWTTC 11 (CanLII), per Schmaltz J, at para 26
  21. R v Oliver, 2007 NSCA 15 (CanLII), 250 NSR (2d) 296 (CA), per Saunders JA (3:0), at para 20 (“highest ranking among all of the principles of sentencing in cases involving the abuse of children. Parliament's intention is clearly stated.”)
    R v Michel, 2005 NWTSC 94 (CanLII), [2005] N.W.T.J. No 105, per Schuler J, at para 62 ("The priority objectives of a sentence in the case of the sexual violation of a young person must always be denunciation and deterrence. The sentence must be sufficient punishment so as to reflect society's abhorrence of such conduct so as to discourage others who might engage in similar conduct. Courts have long said that those are the important objectives.")
  22. R v Michel, 2005 NWTSC 94 (CanLII), [2005] NWTJ No 105, per Schuler J, at para 63
    See s. 718.01
  23. R v BCM, 2008 BCCA 365 (CanLII), 238 CCC (3d) 174 (BCCA), per Neilson JA (3:0), at para 35 (“the principles of restraint and rehabilitation, while still operative, are given secondary status in offences involving young victims.”)
  24. Friesen, supra, at para 104

Psychological Harm

It has been recognized by courts that child victims of sexual offences suffer from long lasting damage.[1] They suffer from emotional trauma that is often permanent. As adults they "may become incapable of forming loving relationship, always fearful of re-victimization by sexual partners. Further, the matured victim may become a sexual predator himself. It is often that an offender will report being victimized by other sexual predators as a child."[2]

The judge should consider the "likelihood of psychological harm to the victim".[3] But the judge does not need to take judicial notice of the psychological harm caused by a sexual offence.[4]

  1. R v DD, 2002 CanLII 44915 (ON CA), , 163 CCC (3d) 471, per Moldaver JA (3:0), at para 36
  2. DD, supra, at paras 37 to 38
  3. R v Rosenthal, 2015 YKCA 1 (CanLII), per Schuler JA (3:0), at para 6 - the "likelihood is a reason that the principle of general deterrence is significant in sentencing for sexual assault"
    R v McDonnell, 1997 CanLII 389 (SCC), per Sopinka J (5:4)
  4. Rosenthal, supra, at para 6

Aggravating and Mitigating Factors

Section 718.2(a)(ii.1) creates an aggravating factor circumstances where there is "evidence that the offender, in committing the offence, abused a person under the age of eighteen years".[1]

Any offence where children are the target, should be treated as an aggravating factor to sentence. This is especially so where the perpetrator is a family member.[2]

Violence

Any form of violence or threat of violence beyond the inherent violence to sexual offences against a person under the age of 18 will be treated as an aggravating factor.[3]

Awareness of Accused

It has been recognised that except in rare cases, the accused will have at least some awareness of the harm that their actions caused.[4]

Voluntary Participation of the Victim

See Victims as a Factor in Sentencing#Victim Under 18 Years of Age

  1. NB: this section came into force by 2005, c. 32. But it can be considered codification of common law.
  2. R v TLB, 2007 ABCA 61 (CanLII), per Fraser CJ (3:0), at para 20
  3. R v SJB, 2018 MBCA 62 (CanLII), per Mainella JA (3:0), at para 22
    R v Sidwell, 2015 MBCA 56 (CanLII), per Steel JA (3:0), at para 53
  4. R v Friesen, 2020 SCC 9 (CanLII), per J, at para 88(complete citation pending)

Grooming

Any form of targeting of a specific victim will enhance the gravity of the offence.[1]

Evidence of "grooming" a youthful victim before or during the commission of the offence is an aggravating factor in sexual offences involving children. [2]

Grooming can take the form of cultivating a relationship of trust or undertaking a process of relinquishing inhibitions all with a view to advancing a plan to sexually exploit a young person.[3]

  1. R v Friesen, 2020 SCC 9 (CanLII), per Wagner CJ and Rowe J, at para 90(complete citation pending)
  2. R v GCF, 2004 CanLII 4771 (ON CA), per Borins JA (3:0), at para 21
    R v RJH, 2012 NLCA 52 (CanLII), per Welsh JA (3:0)
    R v SJB, 2018 MBCA 62 (CanLII), per Mainella JA (3:0), at para 26 ("If proven, it is an aggravating factor that the offender groomed the person under age 18 for sexual activity before the commission of the offence...")
  3. R v Legare, 2009 SCC 56 (CanLII), per Fish J (7:0) at 28, 30

Psychology of Child Sexual Offences

Experts in topics such as pedophelia have given evidence claiming some of the following:

  • pedophilia is a life-long condition. A pedophile is always at risk of re-offence[1]
  1. R v Stuckless, 1998 CanLII 7143 (ON CA), 127 CCC (3d) 225, per Abella JA (3:0) , at para 17

Ranges

It is suggested that a first time offender convicted of a single incident of intercourse with a child should be in the mid to upper single digits sentence is appropriate.[1]

In Ontario, a person in a position of trust who abuses children over a longer period of time will normally receive a sentence in the upper single digits or more.[2]

In Alberta, the "starting point" for "a single serious sexual assault on a child by a person in a position of trust is 4 years".[3]

In Manitoba, "major sexual assaults [against] a young person within a trust relationship by means of violence, threats of violence or by means of grooming" have starting range of 4 to 5 years.[4]

It has been suggested that sexual abuse of a child, particularly sexual intercourse, by a person in authority is in a range of 3 to 5 years.[5]

Any sort of series of sexual offences against young persons by adults in positions of trust over a long duration should attract sentences in the "high" range single-digit of years.[6]

  1. R v RF, 2020 ONSC 7931 (CanLII), per Mew J, at para 36
    R v Audet, 2020 ONSC 5039 (CanLII), OJ No 3554, per Smith J
  2. R v MD, 2012 ONCA 520 (CanLII), per Feldman JA (3:0)
  3. R v S(WB), 1992 CanLII 2761 (AB CA), 127 A.R. 65, per curiam
    R v AGA, 1010 ABCA 61 (CanLII), per curiam (3:0), at para 9
  4. R v Sidwell, 2015 MBCA 56 (CanLII), per Steel JA (3:0), at para 38
  5. see for example R v WWM, 2006 CanLII 3262 (ONCA), [2006] OJ No 440, per Juriansz JA (3:0), at para 14
  6. R v Stuckless, 1998 CanLII 7143 (ON CA), per Abella JA (3:0)

See Also