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Criminal - Sentencing - Sex Offences (3). R. v. S.W.
In R. v. S.W. (Ont CA, 2024) the Court of Appeal considered sentencing ranges for sexual assault:(2) General principles regarding sentences for sexual assaults
[30] Prior to this court’s decision in A.J.K., the sentencing range for penetrative or serious sexual assaults perpetrated by an accused on a stranger or acquaintance differed from the range applied when the complainant was the accused’s intimate partner. This court’s decision in R. v. Bradley, 2008 ONCA 179, 234 O.A.C. 363, was often cited as support for a range of three to five years for sexual assaults involving non-intimate partners; this was referred to as the Bradley range. In contrast, this court’s decision in Smith was cited to support a range of 21 months to 4 years for sexual assaults involving an intimate partner; this was referred to as the Smith range.
[31] In A.J.K., this court brought the distinction between the sentencing ranges in Bradley and Smith to an end, emphasizing that it was a “sentencing artefact” that was out of step with the current societal and judicial understanding of the harm experienced by all victims of sexual assault: at paras. 70-71. Fairburn A.C.J.O. highlighted the serious nature of this harm as follows, at paras. 73-74:A sexual assault involving forced penetration is a sexual assault involving forced penetration. An act of sexual violence perpetrated on a stranger to the accused is not necessarily worse than a similar act of sexual violence perpetrated on an intimate or former intimate partner. Any suggestion to the contrary could only rest on unacceptable myths and stereotypes, ones that a fair justice system must continuously confront and eradicate…
All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones. [Citations omitted; emphasis added.] [32] In this context, the court established that “[a]bsent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary”, regardless of whether the complainant is a stranger or an intimate partner of the accused: at para. 77. The court further emphasized that, while the range for these types of offences is generally three to five years, a range is only meant to be “a quantitative sentencing tool designed to assist busy trial judges with where to start” and that “there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate”: A.J.K., at para. 77 (citations omitted).
[33] In R. v. R.S., 2023 ONCA 608, this court addressed an appeal from a decision where a sentencing judge imposed a conditional sentence of two years less a day for a violent sexual assault involving forced digital penetration. In that context, relying on A.J.K., the majority of the court stated that “the range for sexual assault involving forced penetration is 3-5 years in the penitentiary”: R.S., at para. 22. The majority further stated that, while s. 742.1(f)(iii) of the Criminal Code was amended to allow for conditional sentences for a wider range of offences including sexual assault, this “did not have the effect of rendering conditional sentences appropriate or inappropriate in any particular circumstances. Sentencing remains a discretionary decision that courts must make, governed by the parameters established by the Criminal Code”: R.S., at para. 24. The majority also observed, at para. 27, that “[i]t may be that, in some circumstances, a conditional sentence is appropriate for sexual assault at the lowest end of the range of wrongful conduct. But there is no basis to suppose that it is appropriate for sexual assault at the higher end of that range.” . R. v. C.B.
In R. v. C.B. (Ont CA, 2024) the Court of Appeal considered (and dismissed) a Crown sentencing appeal of guilty pleas to child sex offences, here by a young woman:[20] The sentencing judge set out the relevant principles. He stated that the cardinal principle of sentencing is proportionality: that the severity of a sentence will depend on the seriousness of the offence and the moral blameworthiness of the offender, and that personal circumstances are relevant to proportionality, but that they do not alter the seriousness of the offence. He noted that making available child pornography warrants longer sentences because allowing others to observe the images contributes to further victimization of the children. He also observed that, since the offences involved the abuse of a person under 18 years of age, he must give primary consideration to the objectives of denunciation and deterrence, and that in applying these principles he was guided by Friesen.
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[23] The sentencing judge acknowledged that the decisions referred to by the Crown reflected the Supreme Court’s message that mid-single digit penitentiary terms for sexual offences against children are to be the norm, and that upper-single digit and double-digit terms should be neither unusual nor reserved for rare or exceptional circumstances. He stated, “[h]owever, neither Friesen nor the subsequent cases brought to my attention concern an offender like the one before me; an 18-year-old at the time of the offence (without a criminal record, who pled guilty).”
[24] The sentencing judge referred to the principle of restraint with respect to young first offenders recognized in R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538, R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, and R. v. Randhawa, 2020 ONCA 668.
[25] The sentencing judge observed that jail was required to address the seriousness of the offences, including the harm caused to the victims. Having considered what the Supreme Court said in Friesen and what this court said about young first offenders, he concluded that the right sentence was 18 months in a provincial reformatory for each count, to be served concurrently, followed by probation for a period of three years on terms including reporting to a probation officer, taking counselling as directed, and having no contact with the victims or their immediate families. He made a DNA order, an order under s. 161 of the Criminal Code for life, and a SOIRA order for life.[3]
C. DISCUSSION
[26] Appellate courts must generally defer to sentencing judges’ decisions. The 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: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras 48, 41; Friesen, at paras. 25-26; R. v. Bertrand Marchand, 2023 SCC 26, at para. 50.
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[29] I would not interfere with the sentence in this case.
[30] First, I do not agree that the sentencing judge failed to give meaningful effect to the teachings of Friesen. There is no question that denunciation and deterrence are the most important sentencing objectives in child sexual offence cases, including child pornography, and must be given primary consideration: Criminal Code, s. 718.01; Friesen, at paras. 44, 101, and fn. 2. Friesen also recognizes, however, that factors that might reduce an offender’s moral culpability continue to be relevant in child sexual offence cases. The Court stated that the proportionality principle requires that punishment be “just and appropriate … and nothing more”, observing that an offender’s conduct will be less morally blameworthy in some cases than in others, and that the personal circumstances of offenders can have a mitigating effect: at para. 91. The Court noted that, while deterrence and denunciation have priority, the sentencing judge retains discretion to accord significant weight to other factors, including rehabilitation, in exercising discretion in arriving at a fit sentence in accordance with the overall principle of proportionality: at para. 104. See also Bertrand Marchand, at para. 28.
[31] In R. v. B.M., 2023 ONCA 224, a case relied on by the Crown, this court overturned a conditional sentence imposed on an offender whose offences commenced when he was 18 years old, and substituted a custodial sentence of seven years less time served on the conditional sentence. The trial judge had erred in failing to give effect to the primary sentencing objectives of deterrence and denunciation in cases involving sexual offences against children and had elevated the consideration of collateral immigration consequences and the respondent’s rehabilitative prospects above the statutorily required primary sentencing objectives: at para. 12. The Crown contends that the same occurred in this case.
[32] I disagree. In B.M. the trial judge’s reasons did not advert to the priority of denunciation and deterrence. And there were other errors, including the trial judge’s conclusion that there was a significant causal connection between the respondent’s mental illness and his criminal conduct, which was not supported by the evidence. The two-year conditional sentence was also manifestly unfit where the offences involved four years of sexual interference, including repeated acts of anal and vaginal penetration of two children who were groomed and exploited while the respondent lived in their home, and they were entrusted to his care.
[33] In this case, by contrast, the sentencing judge explicitly adverted to the need to give primary consideration to the objectives of denunciation and deterrence, and the principles from Friesen. He also recognized the principle of restraint in dealing with young first offenders, noting that he did not consider the strong message in Friesen to displace this principle.
[34] This was not an error. As noted above, Friesen specifically recognizes that, while deterrence and denunciation have priority in child sexual offences, the sentencing judge retains discretion to consider factors mitigating moral culpability and to accord significant weight to other sentencing objectives, including rehabilitation. See also R. v. M.V., 2023 ONCA 724, where Paciocco J.A., in allowing an appeal of an eight-year sentence for sexual interference and child luring and related charges, observed that an offender’s guilty plea, expressions of remorse and rehabilitative efforts, and the principle of restraint in sections 718.2(d) and (e) continue to be relevant in sentencing child sex offenders: at paras. 70-71, 83. And, contrary to the submissions of the Crown, I do not read the sentencing judge in this case as having made the error identified in R. v. T.J., 2021 ONCA 392, of having given priority to the personal circumstances of the offender while paying little attention to the harm suffered by the victim. The trial judge addressed the respondent’s personal circumstances only after acknowledging in some detail the harm to the victims and addressing the serious circumstances of the offences.
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[37] Second, I turn to the Crown’s submission that the trial judge erred in failing to take into consideration in sentencing C.B. that she was in a position of trust with the victims. Section 718.2(a)(iii) of the Criminal Code identifies abuse of trust or authority as an aggravating factor in sentencing. The Crown points to numerous authorities where courts have found serious breaches of trust in relation to child victims by daycare providers (see, e.g., R. v. S.C., 2019 ONCA 199, 145 O.R. (3d) 711, leave to appeal refused, [2019] S.C.C.A. No. 38625), volunteers (see, e.g., R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752), and offenders who were related to their victims (see, e.g., R. v. R.H., 2021 ONCA 236 and R. v. P.S., 2019 ONCA 637).
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[39] Whether a person stood in a relationship of trust or authority in relation to a victim is a question of fact, which is entitled to appellate deference unless it is shown that the finding rests on an error of law or principle: R. v. Aird, 2013 ONCA 447, 307 O.C.A. 183, at para. 31; R. v. R.D., 2020 ONCA 23, at para. 48. ...
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[41] Finally, the Crown submits that the sentencing judge erred when, after imposing sentences of 18 months for each count, he directed the sentences to be served concurrently. The Crown asserts that consecutive sentences were appropriate and warranted under common law because C.B. engaged in separate and distinct acts involving two different victims at different times. The Crown also relies on s. 718.3(7) of the Criminal Code which requires sentences for child pornography to be served consecutive to any other sexual offence against a child.
[42] I would not give effect to this ground of appeal.
[43] Dealing first with the Crown’s common law argument, I note that all of the submissions at the sentencing hearing were based on a global sentence for C.B.’s offences in relation to both victims, without reference to the allocation of the sentence between the offences, and whether the sentences for particular offences would be served consecutively or concurrently. The Supreme Court, in Bertrand Marchand, has recently directed that the preferred approach to sentencing in respect of child sexual offences is to determine a fit sentence for each offence, and then to impose consecutive sentences, subject to the principle of totality, in which case the sentences can be made concurrent (except where consecutive sentences are required by statute), or individual sentences can be reduced to achieve a just and appropriate sentence: at para. 99. Nevertheless, it was not an error for the trial judge to fix the global sentence first, and then to assign sentences for each individual offence, designating them concurrent or consecutive to fit within the already determined global sentence: see R. v. Jewell (1995), 1995 CanLII 1897 (ON CA), 83 O.A.C. 81; R. v. Ahmed, 2017 ONCA 76, 136 O.R. (3d) 403; and R. v. J.H., 2018 ONCA 245. As in J.H. (which involved the appeal of concurrent sentences for offences against more than one child victim), while I would not endorse the sentencing judge having applied concurrent sentences across the board without differentiating between the conduct underlying the counts, I am not persuaded that the overall sentence was unfit: see J.H. at paras. 51, 53.
[44] Turning to the sentencing judge’s failure to comply with the requirements of s. 718.3(7), I agree that the strict application of this provision would have required a consecutive sentence for the voyeurism offence. I would not, however, rely on s. 718.3(7) to interfere with the sentence in the circumstances of this case. First, C.B. has served the custodial portion of her sentence. Second, I have determined that there was no reversible error in the overall global sentence of 18 months, and that the sentence is fit. Finally, considering the particular circumstances of the offences, the sentencing submissions and the sentencing judge’s reasons, I am confident that, had the sentencing judge turned his mind to the statutory requirement, he would have applied the principle of totality and allocated the global sentence between the child pornography offences and the voyeurism offence, or, because the same facts supported the offences in relation to N.H., he would have considered whether the voyeurism conviction should be conditionally stayed under Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. . R. v. MacMillan
In R. v. MacMillan (Ont CA, 2023) the Court of Appeal considers criminal sentencing, here for serious sexual assault:[101] The sentences imposed in this case are not a marked departure from sentences imposed for similar offenders who committed similar offences. Prolonged, violent, and degrading sexual assaults involving multiple offenders demand significant and exemplary custodial sentences up to a maximum of fourteen years, pursuant to s. 272(2)(b) of the Criminal Code. The circumstances of this case justify imposing the nine-year global sentences: see e.g., R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 92; R. v. Downey and Thompson, 2010 ONSC 1531; R. v. Bohorquez, 2019 ONSC 1643; R. v. Katsnelson, 2010 ONSC 2246; R. v. Assing, 2008 CanLII 58607 (Ont. Sup. Ct.); and R. v. Mullins, 2015 ONSC 1724.
[102] The circumstances in this case demanded significant custodial sentences. The offences were, in a word, horrifying. The appellants’ actions demonstrated a sense of entitlement and disrespect for the personal integrity of the complainant. . R. v. E.H.
In R. v. E.H. (Ont CA, 2023) the Court of Appeal considers sentencing in sex offences against children:[63] In Friesen, the Supreme Court of Canada held, at para. 114:[T]hat mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. . R. v. G.S.
In R. v. G.S. (Ont CA, 2023) the Court of Appeal considers sentencing in sexual offences involving children:[65] Deterrence and denunciation are the primary concerns when sentencing those convicted of sexual abuse of children: Friesen, at para. 101. As has always been and will always remain the case, children are inherently precious to society. Sexual predators who set their sights on children steal from them their right to innocence, their right to safety and their right to be free from the profound harm that will inevitably follow them long into adulthood. The sexual exploitation of children does deep harm to the child and deep harm to society. This is why mid-single digit penitentiary sentences are not unusual for offences of this nature: Friesen, at paras. 75-76, 114.
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[69] The sentence was not demonstrably unfit. In most cases, a three- to five-year range for sexually abusing children in the context of a position of trust is too low: R. v. D.M., 2012 ONCA 894, 295 C.C.C. (3d) 159, at para. 66. ... . R. v. D.W.
In R. v. D.W. (Ont CA, 2023) the Court of Appeal considered sentencing for sexual offences against children:[11] ... However, as this court noted in R. v. M.M., 2022 ONCA 441, at para. 16, “Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility.” The chances of the applicant receiving a conditional sentence are remote and, therefore, do not meaningfully impact my assessment under s. 679(4)(a). . R. v. R.S.
In R. v. R.S. (Ont CA, 2023) the Court of Appeal considered sentencing for sexual assaults:[4] As I will explain, although conditional sentences are now available in sexual assault cases, proportionality remains key to sentencing. Conditional sentences will rarely, if ever, be proportionate in the context of violent sexual assault cases such as this. The sentencing objectives of deterrence and denunciation will normally require penitentiary sentences in the 3 to 5-year range for such offences, as this court explained recently in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721.
[5] The sentence for the sexual assault conviction in this case is not only below the penitentiary range, it does not involve any institutional imprisonment. A conditional sentence is not proportionate to the serious offences committed by the respondent and is not justified by the principles from R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, on which the sentencing judge relied. The sentence is demonstrably unfit.
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[27] The difficulty in sentencing for sexual assault stems from the broad scope of the offence. Sexual assault is defined in terms of sexual touching without consent, a wide spectrum of conduct that ranges from touching to forced intercourse. It may be that, in some circumstances, a conditional sentence is appropriate for sexual assault at the lowest end of the range of wrongful conduct. But there is no basis to suppose that it is appropriate for sexual assault at the higher end of that range.
[28] Time and again, this court has emphasized the considerations that inform proportionality determinations in sexual offences, not only against children but also adults. As Trotter J.A. noted in R. v. Brown, 2020 ONCA 657, 152 O.R. (3d) 650, at para. 59:Sexual offences raise particular considerations in the proportionality analysis. In R. v. Friesen, the Supreme Court said, at para. 75: “In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. Accurately understanding both factors is key to imposing a proportionate sentence.” There is no reason to think that it does not also apply to sexual offences at large. As the Supreme Court observed, “taking the harmfulness of these offences into account ensures that the sentence fully reflects the ‘life-altering consequences’ that can and often do flow from the sexual violence”: Friesen, at para. 74. [Citation omitted.] [29] As Fairburn A.C.J.O. noted A.J.K., at para. 74, sexual assaults are “serious acts of violence”, the victims of which “suffer profound emotional and physical harm and their lives can be forever altered”.
[30] This was by any standard a violent sexual assault. R.S. attacked the victim, forcibly undoing her clothing and underwear, touching her with his hands and mouth, removing her tampon and penetrating her digitally – all over her repeated cries of “no” as she told him to stop. He then choked her, which resulted in an additional offence.
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[39] In any event, denunciation and deterrence are primary considerations on sentencing in cases of serious sexual assault: see e.g., A.J.K., at para. 83; Bear, at para. 117; R. v. Macintyre-Syrette, 2018 ONCA 706, at para. 20; R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99, at para. 41. Even considered together, the conditional sentence and 90-day intermittent sentence are simply inadequate to give effect to the primacy of these considerations: see R. v. Lis, 2020 ONCA 551, 152 O.R. (3d) 125, at paras. 98-99; R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, at para. 42; R. v. Schertzer, 2015 ONCA 259, 325 C.C.C. (3d) 202, at para. 137, leave to appeal refused, [2015] S.C.C.A. No. 242. . R. v. Lavergne
In R. v. Lavergne (Ont CA, 2023) the Court of Appeal considered sentencing in sex offences:B. ARE THE SENTENCES DEMONSTRABLY UNFIT?
[22] The sentences were not demonstrably unfit. I appreciate that the actus reus of the offences – the episodes of touching – were each transient and not as physically intrusive as many sexual offences. However, to find the sentence demonstrably unfit on that basis alone would be to disregard the admonition by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 141-44, that although the type of sexual act can reflect on the level of moral fault involved, courts should not give excessive emphasis to the physical act involved and should not “justify a lower sentence by labelling the conduct as merely sexual touching”.
[23] With respect to children, even relatively unobtrusive touching can cause extensive psychological and emotional harm, notwithstanding that the harm to bodily integrity is at the lower end of the scale. This is particularly so where the conduct is repeated: Friesen, at para. 131 (citations omitted). Here, in L.G.’s case, the touching was repeated on numerous occasions, over a long period of time, and it occurred in public, which increased the risk of her shame, and embarrassment. The trial judge accepted the descriptions of the psychological and emotional harm which, in L.G.’s case in particular, was profound, a factor to be given emphasis in sentencing sexual offences against young persons: Friesen, at paras. 74-76. The actual harm a child victim experiences is to be a “key determinant” in assessing the gravity of the offence: Friesen, at para. 85. It is also material that L.G. was an adolescent. This made her particularly vulnerable based on her age alone: Friesen, at para. 136. The appellant not only exploited her immaturity but in the case of both L.G. and D.R. he abused his elevated power as their teacher to treat them as sexual objects, a highly morally culpable engagement in wrongful conduct in breach of trust: Friesen, at para. 129. To make matters worse, he did this in a context where the trial judge found him to have groomed L.G. In these circumstances, the sentences were not demonstrably unfit. . R. v. T.K.N.
In R. v. T.K.N. (Ont CA, 2023) the Court of Appeal commented on sexual offence sentencing with respect to child victims:[19] Particularly in light of the guidance provided in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, concerning the need to recognize the wrongfulness of, and harm caused by, sexual offences against children, we are not persuaded that the sentence imposed by the trial judge was demonstrably unfit. As Friesen makes clear, mid-single digit penitentiary terms for sexual offences against children are normal and substantial sentences can be imposed even where there is only one victim: Friesen, at para. 114. Nor do we see any error in principle in the trial judge’s reasons for sentence.
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