Sentencing for Sexual Offences
| This page was last substantively updated or reviewed July 2023. (Rev. # 88957) |
General Principles
- 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]
- Consent
De facto consent of the victim is not an appropriate form of mitigation.[3]
- Terminology
The use of terms such as "fondling" or "caressing" should be avoided as it tends to minimize the violence involved.[4]
- Concurrent and Consecutive Sentences
It is "rarely appropriate" for a judge to apply concurrent sentences for separate victims of sexual abuse.[5]
- ↑ R v Brown, 2020 ONCA 657 (CanLII), 152 OR (3d) 650, per Trotter JA, at para 59 - extending principles from Friesen to adult offences
- ↑ R v Stuckless, 1998 CanLII 7143 (ON CA){perONCA| ("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.")
- ↑ See Victims as a Factor in Sentencing
- ↑ R v Friesen, 2020 SCC 9 (CanLII), per Wagner CJ and Rowe J
- ↑ R v Sinclair, 2022 MBCA 65 (CanLII), at para 48
Child Sexual Offences
Position of Trust
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.
- ↑ See Delay as a Factor in Sentencing
- ↑
R v Spence, 1992 ABCA 352 (CanLII), 78 CCC (3d) 451, per curiam, at paras 9 to 14