Sentencing for Sexual Offences
| This page was last substantively updated or reviewed July 2023. (Rev. # 95477) |
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]
- 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]
- ↑ 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), 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.")
- ↑
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 - ↑
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 - ↑
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
- ↑ R v Hutton, 2024 ABKB 251 (CanLII), per Inglis J, at para 14
- ↑ 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