View source for Sentencing for Sexual Offences

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==General Principles==

''De facto'' consent of the victim is not an appropriate form of mitigation.<ref>
See [[Victims as a Factor in Sentencing]]
</ref>
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==Youthful and Child Victims==
{{seealso|Victims as a Factor in Sentencing}}

; Seriousness of Sexual Offences Against Young Victims

It is suggested that "force is inherent in all sexual assaults on children".<ref>
''R v CT'', [http://canlii.ca/t/1z3x1 2008 NLTD 112] (CanLII){{perNLSC|Goulding J}} at para 36<br>
</ref>

Many courts have expressed society's concern for crimes, including sexual offences, against children.<ref>
see ''R v Springer'', (1988) 88 N.B.R.(2d) 177 (NBCA){{NOCANLII}}<br>
R v DC and M.G., [http://canlii.ca/t/25rkk 2009 NBCA 59] (CanLII){{perPEICA|Deschênes JA}} (3:0)<br>
</ref>

A predatory sexual offence 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.<ref>''R v DD'' (2002), 163 CCC (3d) 471, [http://canlii.ca/t/1db6b 2002 CanLII 44915] (ON CA){{perONCA|Moldaver JA}} (3:0){{ats|33 to 45}} <br>
''R v Woodward'', [http://canlii.ca/t/fn76l 2011 ONCA 610] (CanLII){{perONCA|Moldaver JA}} (3:0) at paras 75 to 77<br></ref>

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.<ref>{{supra1|DD}}{{at|35}}</ref> It is for this reason that courts must focus on protecting children.<ref>
''R v Nisbet'', [http://canlii.ca/t/2f868 2011 ONCA 26] (CanLII){{TheCourtONCA}} (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.")</ref>

Children are vulnerable as they cannot protect themselves.<ref>
''R v DVB'', [http://canlii.ca/t/29c85 2010 ONCA 291] (CanLII), (2007), 215 CCC (3d) 505{{perONCA|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")
</ref>

A child is inherently vulnerable. Accordingly, they can be coerced without threats ever being articulated.<ref>
''R v Taylor'', [http://canlii.ca/t/g0978 1995 CanLII 10546] (NL SCTD), (1995), 134 Nfld. & P.E.I.R. 181 (Nfld. T.D.){{perNLSC|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")
</ref>
{
; 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". <ref>
NB: this section came into force by 2005, c. 32, s. 24. <br>
</ref>
Nevertheless, rehabilitative factors must still be considered.<ref>
''R v Michel'', [http://canlii.ca/t/1nxw8 2005 NWTSC 94] (CanLII){{perNWTSC|Schuler J}} at para 63<br>
See [http://canlii.ca/t/7vf2#sec718.01 s. 718.01]</ref> This section simply codifies already existing principles.<ref>
''R v GJO'', [http://canlii.ca/t/fsx8p 2006 NLTD 90] (CanLII){{perNLSC|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.")<br>
''R v Cazon'', [http://canlii.ca/t/1nzln 2006 NWTTC 11] (CanLII){{perNWTSC|Schmaltz J}} at para 26<br>
</ref>

Denunciation and deterrence have the highest priority in sentencing for offences involving the abuse of children.<ref>
''R v Oliver'', [http://canlii.ca/t/1wj9x 2007 NSCA 15] (CanLII), (2007), 250 N.S.R. (2d) 296 (C.A.){{perNSCA|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.”)<br>
''R v Michel'', [http://canlii.ca/t/1nxw8 2005 NWTSC 94] (CanLII), [2005] N.W.T.J. No. 105{{perNWTSC|Schuler J}}{{at|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.")<br>
</ref>

The principles of restraint and rehabilitation are still a factor but are secondary for offences involving young victims.<ref>
''R v BCM'', [http://canlii.ca/t/20rsc 2008 BCCA 365] (CanLII), (2008), 238 CCC (3d) 174 (BCCA){{perBCCA|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.”)</ref>

{{Reflist|2}}
===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".<ref>
NB: this section came into force by 2005, c. 32. But it can be considered codification of common law.<Br>
</ref>

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.<ref>
''R v TLB'', [http://canlii.ca/t/1ql87 2007 ABCA 61] (CanLII){{perABCA|Fraser CJ}} (3:0) at para 20<br>
</ref>

; 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.<ref>
''R v SJB'', [http://canlii.ca/t/hs4pq 2018 MBCA 62] (CanLII){{perMBCA|Mainella JA}} (3:0){{at|22}}<br>
''R v Sidwell'', [http://canlii.ca/t/gjcs0 2015 MBCA 56] (CanLII){{perMBCA|Steel JA}} (3:0) at para 53<br>
</ref>

; Voluntary Participation of the Victim 
See [[Victims_as_a_Factor_in_Sentencing#Victim_Under_18_Years_of_Age]]

{{reflist|2}}

===Grooming===
Evidence of "grooming" a youthful victim before or during the commission of the offence is an aggravating factor in sexual offences involving children. <ref>
''R v GCF'', [http://canlii.ca/t/1hkjs 2004 CanLII 4771] (ON CA){{perONCA|Borins JA}} (3:0) at para 21<br>
''R v RJH'', [http://canlii.ca/t/fs976 2012 NLCA 52] (CanLII){{perNLCA|Welsh JA}} (3:0)<br>
''R v SJB'', [http://canlii.ca/t/hs4pq 2018 MBCA 62] (CanLII){{perMBCA|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...")<br>
</ref>

</ref>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.
<ref>
''R v Legare'', [http://canlii.ca/t/26vbx 2009 SCC 56] (CanLII), [2009] 3 SCR 551{{perSCC|Fish J}} (7:0) at 28, 30</ref>

{{reflist|2}}

===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<ref>
''R v Stuckless'', [http://canlii.ca/t/6h3d 1998 CanLII 7143] (ON CA){{perONCA|Abella JA}} (3:0) at para 17
</ref>

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===Ranges===

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.<ref> ''R v MD'', [http://canlii.ca/t/fs6sc 2012 ONCA 520] (CanLII){{perONCA|Feldman JA}} (3:0)</ref>

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".<ref>
R v S.(W.B.) (1992), [http://canlii.ca/t/1nnx7 1992 CanLII 2761] (AB CA), 127 A.R. 65 (Alta. C.A.){{TheCourtABCA}}<br>
''R v AGA'', [http://canlii.ca/t/2875r 1010 ABCA 61] (CanLII){{TheCourtABCA}} (3:0) at para 9<Br>
</ref>

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.<ref>
''R v Sidwell'', [http://canlii.ca/t/gjcs0 2015 MBCA 56] (CanLII){{perMBCA|Steel JA}} (3:0) at para 38<Br>
</ref>

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.<ref>see for example R v W.W.M. [2006] OJ No. 440, [http://canlii.ca/t/1mj8k 2006 CanLII 3262] (ONCA){{perONCA|Juriansz JA}} (3:0) at para 14</ref>

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.<ref>
''R v Stuckless'', [http://canlii.ca/t/6h3d 1998 CanLII 7143] (ON CA){{perONCA|Abella JA}} (3:0)
</ref>

{{reflist|2}}

==Psychological Harm==
It has been recognized by courts that child victims of sexual offences suffer from long lasting damage.<ref>''R v DD'', (2002), 163 CCC (3d) 471, [http://canlii.ca/t/1db6b 2002 CanLII 44915] (ON CA){{perONCA|Moldaver JA}} (3:0) at para 36</ref> 
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."<ref>{{supra1|DD}} para 37-38</ref>

The judge should consider the "likelihood of psychological harm to the victim".<ref>
''R v Rosenthal'', [http://canlii.ca/t/gfv1q 2015 YKCA 1] (CanLII){{perYKCA|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"<br>
''R v McDonnell'', [http://canlii.ca/t/1fr3d 1997 CanLII 389] (SCC), [1997] 1 SCR 948{{perSCC|Sopinka J}} (5:4) <Br>
</ref>
But the judge does not need to take judicial notice of the psychological harm caused by a sexual offence.<ref>
{{supra1|Rosenthal}}{{at|6}}<br>
</ref>

{{Reflist|2}}

==Position of Trust==
[[Position of Trust as a Factor in Sentencing]]

==Historical Sex Offences==
Historical Sexual Offences should not have their penalties reduced simply because of the time that has passed between the offence and sentence. The magnitude and culpability remain the same.
<ref>See [[Sentencing Factors Relating to the Offence#Delay|Delay as a Factor in Sentencing]]</ref>
The importance of denunciation and deterrence as primary sentencing objectives are not diminished.<ref>
''R v Spence'', [http://canlii.ca/t/2dtm4 1992 ABCA 352] (CanLII){{TheCourtABCA}} at para 9 to 14<Br>
</ref>

However, the passage of time can show that the offender is a low risk to re-offend and that the offence is not in the character of the offender.

{{reflist|2}}
==Case Digests==
* [[Sexual Assault (Sentencing Cases)]]
==See Also==
* [https://consult.justice.gov.uk/sentencing-council/other-sexual-offences/supporting_documents/sexual%20offences%20consultation_Other%20sexual%20offences.pdf Government Policy on Sentencing for Sexual Offences (UK)]

{{OffencesNavBar/Sexual}}