Victims as a Factor in Sentencing

From Criminal Law Notebook
This page was last substantively updated or reviewed July 2021. (Rev. # 95955)

General Principles

See also: Sentencing Factors Relating to the Offence

The significance of victims is found in s. 718 regarding objectives of sentencing:

Purpose

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
[omitted (b), (c) and (d)]
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6; 2015, c. 13, s. 23.

– CCC (CanLII), (DOJ)

Note up: 718

The factors for sentencing also reference victims:

Other sentencing principles

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
(iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services,
[omitted (iv), (v), (vi) and (vii)]
shall be deemed to be aggravating circumstances;
[omitted (b), (c) and (d)]
; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; 2012, c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16; 2017, c. 13, s. 4; 2019, c. 25, s. 293; 2021, c. 27, s. 5.

– CCC (CanLII), (DOJ)

Note up: 718.2

Consideration of the harm or risk of harm to a victim includes consideration of the extent of violence used.

Impact on Victim

Section 718.2(a)(iii.1) requires courts to consider the principle that "evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation".

This section requires more than just consideration of "harm". The judge must consider "evidence that the offence had a significant impact on the victim."[1]

  1. ↑ R v Quash, 2019 YKCA 8 (CanLII), per Fisher JA (2:1), at para 29 (section 718.2(a)(iii.1) “requires more than an acknowledgement of harm; it requires the judge to consider ‘evidence that the offence had a significant impact on the victim’ to be an aggravating circumstance")

Vulnerable Classes of Victims

A vulnerable victim will typically be treated as an aggravating factor. A child victim or person with physical or mental disabilities will be considered particularly aggravating.

Sex trade workers are a recognized vulnerable class of victims that may be treated as an aggravating factor to sentence.[1] This includes the reluctance that sex workers have to testify against their abusers.[2]


Objectives — offence against vulnerable person

718.‍04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

– CCC (CanLII), (DOJ)

Note up: 718.‍04

Pending Sept 19, 2019 Bill C-75 [1]

  1. ↑ R v Yusuf, 2011 BCSC 626 (CanLII), BCWLD 6459, per Griffin J, at para 34
    R v DR, 2004 BCSC 336 (CanLII), BCTC 336, per Martinson J
    R v Downey, 1992 CanLII 109 (SCC), [1992] 2 SCR 10, per Cory J at p. 32 ("Prostitutes are a particularly vulnerable segment of society. The cruel abuse they suffer inflicted by their parasitic pimps has been well documented.")
  2. ↑ Downey, ibid. at para 61 ("reluctance of prostitutes to testify against pimps is well documented" and at para 55 "[s]trangely, despite the abusive and corrosive relationship that exists between the pimp and prostitute, many prostitutes are strongly attached to their pimps and truly believe that they are in love with them")

Number of Victims

The number of victims will have an impact on the sentence, however, this should not "unduly distort" the appropriate sentence.[1]

  1. ↑ R v Mellstrom, 1975 CanLII 1270 (AB CA), 22 CCC (2d) 472, per Allen JA, at pp. 486-7
    R v Cloutier, 2017 ABPC 3 (CanLII), per Allen J, at para 161

Specific Offences

Fraud

Section 380.1(1)(c) and (c.1) specifically directs courts to consider aggravating the presence of a "large number of victims" and the impact of the offence upon them.[1]

  1. ↑ see also Sentencing Fraud

Intimate Partner Violence

Additional consideration — increased vulnerability

718.201 A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims.

2019, c. 25, s. 293.1.

– CCC (CanLII), (DOJ)

Note up: 718.201

Victim Under 18 Years of Age

See also: Sexual Offences (Sentencing)

Section 718.01 requires that "[w]hen a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct."

In relation to s.718.01, it has been stated that it "has always been the position of this court in dealing with crimes against defenseless children that a strong response was warranted."[1]

Section 718.2 makes any offence that abuses a person under the age of 18 is aggravating.[2]

Offences where young victims must always be considered:

  1. ↑ R v Nickle, 2012 ABCA 158 (CanLII), 545 WAC 366, per Watson JA (3:2), at para 19
  2. ↑ Sentencing Factors Relating to the Offence and Sentencing Factors Relating to the Offender

de facto or "ostensible" consent

There should be no recognition in law of a "de facto" consent on the part of the victim as a mitigating factor to sexual offences against young children as it will have the effect of victim-blaming.[1] Willing participation on the part of the victim is not mitigating.[2]

The "ostensible" consent of a person who is not of legal age to give consent to any sexual act cannot be used to mitigate moral blameworthiness.[3]

Similarly, it is not appropriate to undercut the statutory age limitation outlined in the offence by suggesting that the victim was "mature" for their age.[4]

The existence of a "relationship" of "genuine affection" is not a valid consideration as a mitigating factor.[5]

  1. ↑ R v Hajar, 2016 ABCA 222 (CanLII), 338 CCC (3d) 477, per Fraser CJ (2:1), at para 100 ("Using the “willing participation of the child” as a mitigating factor in sentencing, despite the fact the child is incapable of consenting, must be recognized for what it is – blaming the victim. It also improperly diminishes the offender’s culpability. ...The result of this flawed thinking – the adult offender is treated as if he or she is not actually responsible for their behaviour, but the child victim is. ...The child becomes the perpetrator and the offender becomes the victim.")
    R v Pritchard, 2005 ABCA 240 (CanLII), 371 AR 27, per Fraser CJ, at para 7 ("While there may well be a difference in degree between a perpetrator who uses force, as opposed to persuasion, on an underage victim to accomplish his objective, the fact remains that the end result is the same – a sexual assault on someone who cannot, in law, give consent. Put simply, a young girl’s willing participation is not a mitigating factor.")
    R v SJB, 2018 MBCA 62 (CanLII), per Mainella JA, at para 23 ("The judge erred when he characterised the lack of coercion, threat or pressure on the complainant to participate in sexual intercourse as a mitigating circumstance of the commission of the offence. The mere fact the complainant said “sure” to the proposition of the accused to having sexual intercourse does not reduce his moral blameworthiness.")
    R v SADF, 2021 MBCA 32 (CanLII), per Spivak JA
  2. ↑ R v DB, 2013 ONCA 691 (CanLII), 119 OR (3d) 16, per curiam
  3. ↑ SJB, ibid., at para 24
  4. ↑ Pritchard, ibid., at para 9
  5. ↑ R v Ford, 2019 ABCA 87 (CanLII), 371 CCC (3d) 250, per Martin JA, at para 30

See Also

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