Sentencing for Sexual Offences: Difference between revisions

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[[fr:Condamnations_pour_infractions_sexuelles]]
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{{HeaderSentencing}}
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==General Principles==
==General Principles==
 
{{seealso|Sexual Offences}}
''De facto'' consent of the victim is not an appropriate form of mitigation.<ref>
; Ranges
See [[Victims as a Factor in Sentencing]]
Sentencing for sexual offence, whether the victim is under age or not, must emphasize the "wrongfulness and harmfulness" of the offences by taking into account the "life-altering consequences" of the offences.<ref>
{{CanLIIRP|Brown|jb498|2020 ONCA 657 (CanLII)|152 OR (3d) 650}}{{perONCA|Trotter JA}}{{atL|jb498|59}} - extending principles from Friesen to adult offences
</ref>
</ref>
{{Reflist|2}}


==Youthful and Child Victims==
The mere fact that there was no penetrative intercourse does not render the sexual assault on a "lower" range of penalty.<Ref>
{{seealso|Victims as a Factor in Sentencing}}
{{CanLIIRP|Stuckless|6h3d|1998 CanLII 7143 (ON CA)|}}{{perONCA|Abella JA}} ("The absence of penetration does not automatically relegate the sexual abuse of children to the "lower range" of sexual offences. There is no question that "additional force", "collateral crimes" and penetration are aggravating factors. But their absence does not thereby transform them into mitigating circumstances, nor neutralize the other aggravating factors found in this case: the abuse of trust, the number of victims, the frequency of the assaults and their devastating impact on the lives of the victims. These offences were, individually and collectively, unconscionable. Any characterization which purports to diminish their magnitude, is unacceptable.")
 
'''Seriousness of Sexual Offences Against Young Victims'''<Br>
 
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>
</ref>


Many courts have expressed society's concern for crimes, including sexual offences, against children.<ref>
; Good Character
see ''R v Springer'', (1988) 88 N.B.R.(2d) 177 (NBCA){{NOCANLII}}<br>
Good character is of low value when sentencing for sexual offences.<Ref>
R v DC and M.G., [http://canlii.ca/t/25rkk 2009 NBCA 59] (CanLII){{perPEICA|Deschênes JA}} (3:0)<br>
{{CanLIIR|Chung|jxq74|2023 ABKB 372 (CanLII)}}{{perABKB|Renke J}}{{atL|jxq74|159}}<br>
</ref>
{{CanLIIR|Hepburn|g0qgp|2013 ABQB 520 (CanLII)}}{{perABQB|Jeffrey J}}{{atsL|g0qgp|36| to 37}}
 
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), at paras 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>DD{{supra}}{{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>
</ref>


A child is inherently vulnerable. Accordingly, they can be coerced without threats ever being articulated.<ref>
It is often that "self-presentation in public" does not match conduct in private.<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")
{{ibid1|Chung}}{{atL|jxq74|159}}<br>
</ref>
{{CanLIIR|Shrivastava|j265q|2019 ABQB 663 (CanLII)}}{{perABQB|Antonio J}}{{atsL|j265q|77| to 78}} (". . . character traits displayed in public are of questionable relevance to offences committed in secrecy. In particular, since sexual offences are “usually perpetrated in private, out of sight and knowledge of friends and associates”, evidence of community reputation has “little probative value”. Sexual offences “are committed by people from all walks of life, out of the public eye, clandestinely and secretly, often to the surprise of people who thought they knew the perpetrator best.”")<br>
{
{{CanLIIR|Jonat|hz4pj|2019 ONSC 1633 (CanLII)}}{{perONSC|Dunphy J}}{{atL|hz4pj|63}}
'''Primary objectives'''<br>
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>
</ref>


Denunciation and deterrence have the highest priority in sentencing for offences involving the abuse of children.<ref>
It is also said that assigning mitigation to "prior compliance with social norms" has little logic to it in the face of serious sexual offending.<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>
{{CanLIIR|Arcand|2dnsp|2010 ABCA 363 (CanLII)}}{{perABCA| J}}{{atL|2dnsp|136}}<br>
''R v Michel'', [http://canlii.ca/t/1nxw8 2005 NWTSC 94] (CanLII), [2005] N.W.T.J. No. 105{{perNWTSC|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.")<br>
see also: {{CanLIIR|PG|h3m7w|2016 YKTC 73 (CanLII)}}{{perYKTC|Chisholm J}}{{atL|h3m7w|34}}<br>
</ref>
</ref>


The principles of restraint and rehabilitation are still a factor but are secondary for offences involving young victims.<ref>
This can manifest in limited value placed on supporting letters.<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>
{{CanLIIR|Hutton|k4b6v|2024 ABKB 251 (CanLII)}}{{perABKB|Inglis J}}{{atL|k4b6v|14}}
 
{{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>
</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>
; Consent
''R v TLB'', [http://canlii.ca/t/1ql87 2007 ABCA 61] (CanLII){{perABCA|Fraser CJ}} (3:0) at para 20<br>
''De facto'' consent of the victim is not an appropriate form of mitigation.<ref>
See [[Victims as a Factor in Sentencing]]
</ref>
</ref>


'''Violence'''<br>
; Terminology
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>
The use of terms such as "fondling" or "caressing" should be avoided as it tends to minimize the violence involved.<Ref>
''R v SJB'', [http://canlii.ca/t/hs4pq 2018 MBCA 62] (CanLII){{perMBCA|Mainella JA}} (3:0){{at|22}}<br>
{{CanLIIRx|Friesen|j64rn|2020 SCC 9 (CanLII)}}{{perSCC|Wagner CJ and Rowe J}}
''R v Sidwell'', [http://canlii.ca/t/gjcs0 2015 MBCA 56] (CanLII){{perMBCA|Steel JA}} (3:0) at para 53<br>
</ref>
</ref>


'''Voluntary Participation of the Victim'''<br>
;  Concurrent and Consecutive Sentences
See [[Victims_as_a_Factor_in_Sentencing#Victim_Under_18_Years_of_Age]]
It is "rarely appropriate" for a judge to apply concurrent sentences for separate victims of sexual abuse.<REf>
 
{{CanLIIR|Sinclair|jrghb|2022 MBCA 65 (CanLII)}}{{atL|jrghb|48}}
{{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>


</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.
{{Reflist|2}}
<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>
 
{{reflist|2}}
 
===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==
==Child Sexual Offences==
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>
* [[Sentencing for Child Sexual Offences]]
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>DD{{supra}} 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==
Line 140: Line 62:
<ref>See [[Sentencing Factors Relating to the Offence#Delay|Delay as a Factor in Sentencing]]</ref>
<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>
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>
{{CanLIIRP|Spence|2dtm4|1992 ABCA 352 (CanLII)|78 CCC (3d) 451}}{{TheCourtABCA}}{{atsL|2dtm4|9| to 14}}<Br>
</ref>
</ref>


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{{reflist|2}}
{{reflist|2}}
==Case Digests==
==Case Digests==
* [[Sexual Assault (Sentencing Cases)]]
* [[Sexual Assault (Sentencing Cases)]]

Latest revision as of 14:38, 14 July 2024

This page was last substantively updated or reviewed July 2023. (Rev. # 95477)

General Principles

See also: Sexual Offences
Ranges

Sentencing for sexual offence, whether the victim is under age or not, must emphasize the "wrongfulness and harmfulness" of the offences by taking into account the "life-altering consequences" of the offences.[1]

The mere fact that there was no penetrative intercourse does not render the sexual assault on a "lower" range of penalty.[2]

Good Character

Good character is of low value when sentencing for sexual offences.[3]

It is often that "self-presentation in public" does not match conduct in private.[4]

It is also said that assigning mitigation to "prior compliance with social norms" has little logic to it in the face of serious sexual offending.[5]

This can manifest in limited value placed on supporting letters.[6]

Consent

De facto consent of the victim is not an appropriate form of mitigation.[7]

Terminology

The use of terms such as "fondling" or "caressing" should be avoided as it tends to minimize the violence involved.[8]

Concurrent and Consecutive Sentences

It is "rarely appropriate" for a judge to apply concurrent sentences for separate victims of sexual abuse.[9]

  1. ↑ R v Brown, 2020 ONCA 657 (CanLII), 152 OR (3d) 650, per Trotter JA, at para 59 - extending principles from Friesen to adult offences
  2. ↑ R v Stuckless, 1998 CanLII 7143 (ON CA), per Abella JA ("The absence of penetration does not automatically relegate the sexual abuse of children to the "lower range" of sexual offences. There is no question that "additional force", "collateral crimes" and penetration are aggravating factors. But their absence does not thereby transform them into mitigating circumstances, nor neutralize the other aggravating factors found in this case: the abuse of trust, the number of victims, the frequency of the assaults and their devastating impact on the lives of the victims. These offences were, individually and collectively, unconscionable. Any characterization which purports to diminish their magnitude, is unacceptable.")
  3. ↑ R v Chung, 2023 ABKB 372 (CanLII), per Renke J, at para 159
    R v Hepburn, 2013 ABQB 520 (CanLII), per Jeffrey J, at paras 36 to 37
  4. ↑ Chung, ibid., at para 159
    R v Shrivastava, 2019 ABQB 663 (CanLII), per Antonio J, at paras 77 to 78 (". . . character traits displayed in public are of questionable relevance to offences committed in secrecy. In particular, since sexual offences are “usually perpetrated in private, out of sight and knowledge of friends and associates”, evidence of community reputation has “little probative value”. Sexual offences “are committed by people from all walks of life, out of the public eye, clandestinely and secretly, often to the surprise of people who thought they knew the perpetrator best.”")
    R v Jonat, 2019 ONSC 1633 (CanLII), per Dunphy J, at para 63
  5. ↑ R v Arcand, 2010 ABCA 363 (CanLII), per J, at para 136
    see also: R v PG, 2016 YKTC 73 (CanLII), per Chisholm J, at para 34
  6. ↑ R v Hutton, 2024 ABKB 251 (CanLII), per Inglis J, at para 14
  7. ↑ See Victims as a Factor in Sentencing
  8. ↑ R v Friesen, 2020 SCC 9 (CanLII), per Wagner CJ and Rowe J
  9. ↑ R v Sinclair, 2022 MBCA 65 (CanLII), at para 48

Child Sexual Offences

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. [1] The importance of denunciation and deterrence as primary sentencing objectives are not diminished.[2]

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.

  1. ↑ See Delay as a Factor in Sentencing
  2. ↑ R v Spence, 1992 ABCA 352 (CanLII), 78 CCC (3d) 451, per curiam, at paras 9 to 14

Case Digests

See Also

v • e
 
Sexual Offences
Offences
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