Sentencing Principles for Sexual Offences Against Children
Cory Wilson is a criminal lawyer, serving Calgary, Okotoks, Airdrie, Strathmore, Cochrane and Canmore.
In a recent decision, R v Friesen the Supreme Court of Canada has instructed lower courts to be tougher when punishing sexual crimes against children, in landmark reasons for judgment that offer extensive and detailed guidance on principles of sentencing for sexual offences against children.
Friesen met a woman online. One night, he was at the woman’s house. The woman’s friend was also there babysitting the woman’s two children. Friesen and the woman had sex. Shortly thereafter, Friesen directed the woman to bring her four-year-old child into the bedroom so he could do something sexually violent to her. For some reason, the woman agreed and brought the sleeping child into the bedroom. Friesen sexually assaulted the child until the babysitter heard her screams and came into the bedroom and rescued the child. Friesen told the woman to bring the child back or he would tell the babysitter she sexually assaulted her one-year old son. The woman recorded the conversation on her phone.
Friesen pled guilty to sexual interference and extortion. The sentencing judge sentenced Friesen to six years after comparing it to another similar case that found the starting point to be 4-5 years in prison. Friesen appealed the sentence and the Ontario Court of Appeal agreed that the sentencing judge erred. The Court of Appeal found that the two cases were dissimilar and for that reason, the sentencing judge should not have relied on it. As a result of Friesen not having a relationship of trust with the child, the proper sentence was 4.5 years in jail.
The matter went to the Supreme Court of Canada who disagreed with the Court of Appeal and found that that 6 years sentence should stand.
Protecting children is one of the basic values of Canadian society. In 2012, over half of victims of sexual crimes reported to police were under 18. These crimes are often hidden because they are often done in homes, by someone the child knows and trusts.
The SCC identified the protection of children from harm and exploitation as the overarching objectives of Parliament’s legislative scheme of sexual offences against children. New and evolving technologies have enabled sexual violence against children, provided sexual offenders with easier access to children and allows for easy dissemination of child pornography.
The SCC identified the protection of children from harm and exploitation as the overarching objectives of Parliament’s legislative scheme of sexual offences against children. New and evolving technologies have enabled sexual violence against childrem, provided sexual offenders with easier access to children and allows for easy dissemination of child pornography.
Standard of Review
The Supreme Court of Canada upheld the standard of review for sentencing judges as set out in Lacasse (2015 SCC 64):
An appellate court can only intervene to vary a sentence if: (1) the sentence is demonstrably unfit, or (2) the sentencing judge made an error in principle that had an impact on the sentence. Errors in principle refer to (a) errors of law, (b) a failure to consider a relevant factor, or (c) erroneous consideration of an aggravating or mitigating factor.
If a sentence is either demonstrably unfit, or the sentencing judge made an error that impacted the sentence, an appellate court must perform its own sentencing analysis to determine a fit sentence, without deference to the existing sentence, even if that sentence falls within the appropriate range. The appellate court, however, must give deference to the sentencing judge’s findings of fact, and identification of relevant aggravating and mitigating factors.
Sentencing Ranges & Starting Points
The fundamental principle of sentencing, codified in section. 718.1 of the Criminal Code, requires that a sentence be proportionate to both the gravity of the offence and the degree of responsibility of the offender. The principle of parity, which holds that similar offenders who commit similar offences in similar circumstances should receive similar sentences, is an expression of proportionality.
In sentence appeals, appellate courts help distill starting points and range of sentences for sentencing judges. Where necessary, an appellate court may also set new direction, bringing sentencing ranges into harmony with new understandings of certain types of offences. Appellate courts must give sentencing judges the tools to depart from past precedents and craft fit sentences. Ranges and starting points should only be created for categories of offences that share enough in common; in setting out a range of starting point, appellate courts must also provide a clear description of the category.
Sentencing ranges refer to “summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides.” Both sentencing ranges and starting points are guidelines, not brightline rules. A sentencing judge’s departure from or failure to refer to a range/starting point is not an error in principle.
Sentencing Principles for Sexual Offences Against Children
The legislative scheme of sexual offences against children seek to protect their personal autonomy, bodily and sexual integrity, dignity and equality. These underlying interests require sentence judges to focus on the emotional and psychological harms (not just physical harm) caused by these offences. Many sexual offences against children are committed by a family member or someone in a trust relationship with the child. As a result, child victims often experience further trauma and damage to their other social relationships.
The parents, caregivers and family members of child victims also suffer profound distrust and harm as a result of the offence. Communities also suffer as child victims are more likely to engage in sexual violence against children when they become adults. The innate power imbalance between children and their perpetrators allows sexual violence to go undetected, unreported and under-recorded. Sexual violence against children disproportionately impacts girls, Indigenous youth and other vulnerable groups (i.e. children in gov’t care, children with disabilities, LGBT2Q+ youth, etc.). Where the child victim is Indigenous, the SENTENCING JUDGE may consider the sexual victimization of Indigenous children in sentencing the offender.
Sentencing must reflect the harms perpetuated by sexual violence. Courts must take into account the wrongfulness, and the harmfulness of sexual offences against children when applying the proportionality principle.
(a) Gravity of the Offence
In increasing the maximum sentences available for sexual offences against children, Parliament has sent a clear message about the objective gravity of these offences. To give effect to these increases, courts should generally impose higher sentences for these offences (than they would have previously prior to the increases). Section 718.01 of the Code prioritizes denunciation and deterrence for offences that involve the abuse of children. This confirms Parliament’s intention for sentences to better reflect the seriousness of these offences.
In assessing the gravity of the offence, it is insufficient for the sentencing judge to simply state that sexual violence against children is serious. The sentencing judge must recognize and give effect to:
(1) the inherent wrongfulness of these offences;
Sexual violence against children is inherently wrong given the interference with the child’s sexual and bodily integrity. Physical sexual contact with children also constitutes a form of psychological violence. The inherently exploitative nature of sexual violence against children further aggravates the gravity of the offence. Sentencing judges must give effect to the wrongfulness of this exploitation and power imbalance in sentencing.
(2) the potential harm to children that flows from these offences; and
Sexual violence against children inherently has the potential to cause several forms of harm (identified above). The way in which these potential harms will materialize will vary depending on the circumstances of a case. Courts, however, must recognize that the potential childhood and long-term harms caused by sexual violence illustrate the seriousness of these offences even in the absence of proof of actual harm. Even in the absence of physical violence, such as in child luring cases, the psychological sexual violence has the potential to cause serious harm. Courts must consider the reasonably foreseeable potential harm that flows from sexual violence against children when determining the gravity of the offence.
(3) the actual harm that children suffer as a result of these offences.
Where applicable, Sentencing judges must consider the actual harm that the specific victim experienced as a result of the particular offender. Prosecutors should build an evidentiary record of the actual harm suffered by the victim (i.e. through the use of victim impact statements).
(b) Responsibility of the Offender
Intentionally applying force of a sexual nature to a child is highly morally blameworthy because offenders are, or ought to be aware, of the harms this can cause a child. The inherent vulnerability of children also increases the moral blameworthiness of those who intentionally sexually exploit children. Courts, however, must still consider any relevant mitigating factors arising from the conduct or personal circumstances of the offender in a given case. Where the offender is convicted of an offence without a specific victim (i.e. child luring through a sting operation), the offender cannot benefit from the lack of harm to a particular victim.
Increased Sentences for Sexual Offences Against Children
Although the SCC declined to set a starting point or sentencing range (this is better left to provincial appellate courts to tailor to their given jurisdictions), they offer the following guidance to sentencing courts:
- An upward departure from prior precedents and sentencing ranges may be required to impose a proportionate sentence given Parliament increasing maximum sentences and our contemporary understanding of the harms caused by sexual violence against children;
- Sexual offences against children should generally be punished more severely than sexual offences against adults; and
- Sexual interference with a child should not be treated as less serious than sexual assault of a child.
Applicable Factors to Determine a Fit Sentence
- Likelihood to Re-offend – the higher the offender’s risk to reoffend, the more emphasis should be placed on separating the offender from society in order to protect vulnerable children from harm. An offender’s likelihood to reoffend may also affect the weight placed on rehabilitation.
- Abuse of a Position of Trust or Authority – Relationships of trust exist on a spectrum. Grooming a child can create a relationship of trust where one did not previously exist. Any breach of trust is likely to increase the harm to the victim. Sentencing judges must consider the extent to which the relationship of trust was violated; the higher the degree of trust between the child and the offender, the more aggravating the breach. Trust relationships also increase the offender’s degree of responsibility given a breach of a duty of protection and care.
- Duration & Frequency – Frequency and duration can increase the immediate and long-term harm to the victim which magnifies the severity of the offence and the offender’s moral blameworthiness. Multiple assaults committed over long periods of time should attract significantly higher sentences.
- Age of the Victim – The power imbalance between children and perpetrators is exacerbated for younger children who are even more vulnerable and dependent.
- Degree of Physical Interference – The degree and type of physical interference is an aggravating factor as it reflects the degree of violation of the victim’s bodily/sexual integrity, and the risk of harm caused to the victim. Sentencing ranges and starting points should not be defined based on specific types of sexual activity.
- Victim Participation – Children under the age of 16 are incapable of trust consent to sexual acts with adults. It is an error of law for courts to treat “de facto consent” as a mitigating factor. It is equally an error of law to treat “de facto consent” as a factor in determining a fit sentence. A victim’s “participation” does not negate the harms suffered by victims of sexual violence. Lack of additional violence (i.e. absence of an aggravating factor) is not a mitigating factor.
In deciding whether to impose concurrent or consecutive sentences, the sentencing judge must ask whether the offences are so closely linked to each other so as to constitute a single criminal endeavour. Where closely linked, sentencing judges may, but are not required, to impose concurrent sentences. Where a sentencing judge imposes consecutive sentences, however, the principle of totality requires that the total sentence does not exceed the offender’s overall culpability.
Cory Wilson is a criminal defence lawyer based in Calgary. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.