Canadian Criminal Sentencing/Offences/Sexual Offences

General Principles edit

Sexual assault has been called an "evil".[1]

  1. R. v. D.A.I., 2012 SCC 5 (CanLII), [2012] 1 SCR 149 at para. 1

Youthful Victims edit

Denunciation and deterrence have the highest priority in sentencing for offences involving the abuse of children.[1]

The principles of restraint and rehabilitation are still a factor but are secondary for offences involving young victims.[2]

A predatory sexual offence are those class of sexual offences where the offender uses the imbalance of power between himself and a victim, usually children, to satisfy sexual needs by way of a criminal offence.

Absent exceptional circumstances, denunciation, general and specific deterrence, and the need to separate offenders from society, take precedence over all other objectives of sentencing.[3]

Children are recognized as one of the "most valued and most vulnerable assets." They are generally incapable of defending themselves and so are easily targeted.[4]

It has been recognized by courts that child victims of sexual offences suffer from long lasting damage.[5] They suffer from emotional trauma that is often permanent. As adults they "may become incapable of forming loving relationship, always fearful of revictimization by sexual partners. Further, the matured victim may become a sexual predator himself. It is often that an offender will report being victimized by other sexual predators as a child."[6]

It has been suggested that sexual abuse of a child, particularly sexual intercourse, by a person in authority is in a range of 3 to 5 years.[7]

  1. R. v. Oliver 2007 NSCA 15, (2007), 250 N.S.R. (2d) 296 (C.A.), at para. 20 (“highest ranking among all of the principles of sentencing in cases involving the abuse of children. Parliament's intention is clearly stated.”)
  2. R. v. B.C.M. 2008 BCCA 365, (2008), 238 C.C.C. (3d) 174 (B.C.C.A.), at para 35 (“the principles of restraint and rehabilitation, while still operative, are given secondary status in offences involving young victims.”)
  3. R v D.D. (2002), 163 C.C.C. (3d) 471, 2002 CanLII 44915 (ON CA), at para. 34
    R. v. Woodward, 2011 ONCA 610 at para. 26
  4. R v DD at para. 35
  5. R v DD at para. 36
  6. R v DD para 37-38
  7. see for example R v W.W.M. [2006] OJ No. 440, 2006 CanLII 3262 (ONCA) at para 14

Grooming edit

Evidence of "grooming" a youthful victim is an aggravating factor in sexual offences involving children. [1]Grooming can take the form of cultivating a relationship of trust or undertaking a process of relinquishing inhibitions all with a view to advancing a plan to sexually exploit a young person. [2]

  1. R. v. G.C.F., 2004 CanLII 4771 (ON CA) at para. 21
    R. v. R.J.H., 2012 NLCA 52 (CanLII)
  2. Legare, 2009 SCC 56 (CanLII), [2009] 3 S.C.R. 551 at 28, 30

Position of Trust edit

A person in a position of trust who abuses children over a longer period of time will normally receive a sentence in the upper single digits or more.[1]

  1. R v M.D. 2012 ONCA 520

Historical Sex Offences edit

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]

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.