Victims as a Factor in Sentencing

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;

...

(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

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 any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,

(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,

..., or

(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act

shall be deemed to be aggravating circumstances; ...; 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.

– CCC

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]

↑ 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]

↑ R v Yusuf, 2011 BCSC 626 (CanLII), per Griffin J, at para 34
R v DR, 2004 BCSC 336 (CanLII), per Martinson J

Number of Victims

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

↑ R v Mellstrom (1975), 22 CCC (2d) 472, 1975 CanLII 1270 (AB CA), 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]

↑ see also Sentencing Fraud

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:

Child Pornography (163.1)
Child Luring (Offence) (172.1)
Abandoning Child (Offence) (218)
Abduction of a Young Person (Offence) (280 to 283)

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.^[3]

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.^[4]

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.^[5]

↑ R v Nickle, 2012 ABCA 158 (CanLII), per Watson JA (3:2), at para 19
↑ Sentencing Factors Relating to the Offence and Sentencing Factors Relating to the Offender
↑ R v Hajar, 2016 ABCA 222 (CanLII), 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), 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.")
↑ SJB, ibid., at para 24
↑ Pritchard, ibid., at para 9