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Criminal - Sentencing - Sex Offences - Child (2). R. v. Sheppard
In R. v. Sheppard (SCC, 2025) the Supreme Court of Canada allowed a Crown appeal, this from an Alberta CA criminal sentence variation for jury convictions for "sexual interference and invitation to sexual touching".
Here the court considers sentencing for historical child sex offences, affirming that Friesen (SCC, 2020) applies and the pre-Friesen cases may applies, "though only insofar as they align with contemporary sentencing principles":[1] Sexual offences against children are among the most profoundly immoral acts an individual can commit. Historical sexual offences against children are no less grave, and demand no less accountability, than ones committed today. This appeal provides an opportunity to clarify the applicability of the principles set out in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, to historical sexual offences against children and to reaffirm the standard of appellate review set out in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.
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(2) The Sentencing Judge Correctly Applied the Principles of Friesen
[66] I turn now to the second ground of appeal, which raises the issue of whether the principles and sentencing ranges set out in this Court’s decision in Friesen apply to historical offences, and if so, how. In the court below, Feehan J.A. found that the sentencing judge did not give appropriate weight to pre-Friesen jurisprudence. In my view, he erred in intervening on this basis. As I will explain, the sentencing judge was correct to rely on Friesen and on post-Friesen jurisprudence in determining a fit sentence, and she was not obligated to cushion the impact of Friesen by balancing it against historical jurisprudence.
(a) The Approach to Sentencing for Historical Offences
(i) Contemporary Sentencing Principles Apply to Historical Offences
[67] Sentences for historical offences are properly determined in accordance with the sentencing regimes and societal perspectives that prevail at the time of sentencing (R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752, at para. 61; R. v. Wright, 2024 ONCA 516 (“Wright 2024”), at para. 10; R. v. De Flores Bermudez, 2024 ONCA 433, at paras. 26-28; R. v. R.D. (1996), 1996 CanLII 4973 (SK CA), 144 Sask. R. 21 (C.A.), at para. 11; R. v. Fones, 2012 MBCA 110, 288 Man. R. (2d) 86, at para. 60; R. v. Paradis (1991), 1991 CanLII 6845 (NL CA), 92 Nfld. & P.E.I.R. 271 (Nfld. C.A.), at para. 11; R. v. R.O., 2023 BCCA 65, at para. 49; L.L. v. R., 2016 QCCA 1367, at paras. 149-50; R. v. Hall, [2011] EWCA Crim 2753, [2012] 2 All E.R. 340, at para. 47, per Lord Judge C.J.).
[68] The rationale for this approach is rooted in the principle of proportionality: sentences must be “proportionate to the gravity of the offence and the degree of responsibility of the offender” (Criminal Code, s. 718.1). What is regarded as a proportionate sentence depends on “society’s current understanding and awareness of the gravity of a particular offence and blameworthiness of particular offenders” (Friesen, at para. 35). Societal appreciation of the nature of criminal acts is bound to evolve over time; when it does, so too must the sentencing regimes that apply to those acts (para. 110; R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, at para. 62; R. v. Vautour, 2016 BCCA 497, at paras. 52‑54; R. v. Smith, 2017 BCCA 112, at para. 36).
[69] Alongside the principle of proportionality, sentencing judges are also required to consider the principle of parity: “. . . similar offenders who commit similar offences in similar circumstances should receive similar sentences” (Friesen, at para. 31; Criminal Code, s. 718.2(b)). The respondent argues that the principle of parity requires the application of historical principles to historical offences (R.F., at paras. 69-71). However, as this Court explained in Friesen, “parity is an expression of proportionality” — not the other way around (para. 32). That means that sentences should be consistent with other proportionate sentences imposed under similar circumstances (R.O., at para. 49). There is no value in achieving parity with disproportionate sentences.
[70] Where the judiciary has determined that sentences have been deflated or inflated because of inaccurate perceptions about the nature of the offence or the offender, the principle of parity demands conformity with the sentences that are deemed to be proportionate (Friesen, at para. 87; R.O., at paras. 52-53; Wright 2024, at para. 12). Sentencing judges who have the benefit of revised sentencing principles are therefore obligated to apply contemporary principles, even though doing so may result in sentences that are dissimilar to the sentences previously imposed for the offence in question.
[71] Applying contemporary sentencing principles to historical offences is also necessary to achieve the sentencing objectives set out in s. 718(a) to (f): denunciation, deterrence, protection of society, rehabilitation of the offender, reparation to the victim, the promotion of a sense of responsibility in the offender, and acknowledgement of the harm caused to the victim or community (see also Paradis, at para. 11). These objectives can meaningfully be assessed only when the offender is before the sentencing judge. The objective of denunciation in particular demands a contemporary perspective because it entails condemning the offender “for encroaching on our society’s basic code of values” (Friesen, at para. 105, citing M. (C.A.), at para. 81). To sentence in a manner that breathes new life into dated or defunct societal values would distort the expressive function of the criminal justice system.
(ii) The Principles Set Out in Friesen Apply to Historical Sexual Offences Against Children
[72] In Friesen, this Court recognized that the sentences being imposed for sexual offences against children were disproportionately lenient because they were rooted in historical misconceptions about the gravity of these offences (paras. 50 and 110). This Court directed courts to “take the modern recognition of the wrongfulness and harmfulness of sexual violence against children into account when determining the offender’s degree of responsibility” (para. 87). In practice, this meant that “sentences for sexual offences against children must increase” (para. 151) and that “[c]ourts are thus justified in departing from precedents” (para. 110).
[73] Part of the impetus for inviting an upward shift in sentences was Parliament’s decision to enact the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23 (Friesen, at paras. 98-100). That statute increased the maximum sentences for sexual interference, invitation to sexual touching, sexual exploitation and sexual assault where the victim is under 16 years of age from 10 years’ imprisonment to 14 years’ imprisonment. This Court held that Parliament’s decision to increase maximums should “be understood as shifting the distribution of proportionate sentences for an offence” (para. 97).
[74] However, the increased maximum sentences were not a standalone basis for modifying common law sentencing ranges; rather, they were taken to inform the assessment of proportionality because they signalled society’s evolved understanding of the gravity of the offence (Friesen, at para. 96; Bertrand Marchand, at para. 47; R. v. Rayo, 2018 QCCA 824, at para. 125; Stuckless, at para. 112; R.O., at para. 50). In other words, the logic of the upward shift was not to track a change made by Parliament but to follow Parliament’s example in calibrating the law to reflect society’s current awareness of how sexual offences impact children. Our decision in Friesen reinforced Parliament’s rejection of antiquated conceptions of sexual violence against children that were rooted in chastity or propriety, embracing instead a modern understanding focused on the protection of children’s bodily, psychological, and sexual integrity, as the Quebec Court of Appeal explained in Fruitier v. R., 2022 QCCA 1225, at para. 38:[translation] Historically, the legislative scheme of sexual offences against children focused on chastity or propriety rather than on the protection of children’s sexual integrity. In 1987, through the creation of the modern scheme of sexual offences against children, Parliament moved away from that perspective in favour of a “‘child-centred’ approach . . . emphasiz[ing] the trauma to the child victim from all acts of sexual violence”. This shift in perspective, even in paradigm, from “sexual propriety to sexual integrity enable[d] greater emphasis on violations of trust, humiliation, objectification, exploitation, shame, and loss of self‑esteem [of victims] rather than simply, or only, on deprivations of honour, chastity, or bodily integrity . . . .” This shift also required courts “to focus their attention on emotional and psychological harm [flowing from sexual violence against children], not simply physical harm”. [Footnotes omitted.] [75] While the retrospective application of increased maximum penalties is constitutionally barred, that is not the case with contemporary sentencing principles such as those set out in Friesen (see Bertrand Marchand; Stuckless; R.O.). Section 11(i) of the Canadian Charter of Rights and Freedoms reads as follows:11 Any person charged with an offence has the right
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(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. As the Saskatchewan Court of Appeal explained in R.D., “punishment” under s. 11(i) means “punishment fixed by Parliament rather than any range of sentences that may emerge in court decisions” (para. 11; see also R.O., at para. 52; Fruitier, at para. 39; R. v. W.J., 2016 BCSC 161, at para. 8; R. v. Mehanmal, 2012 ONCJ 681, 270 C.R.R. (2d) 271, at para. 48). On this point, see also M. Vauclair, T. Desjardins and P. Lachance, Traité général de preuve et de procédure pénales 2025 (32nd ed. 2025), at para. 47.84. Section 11(i) prevents only the retrospective application of the punishment. It does not prevent the retrospective application of revised common law sentencing ranges, even where the revisions were inspired by legislative changes.
[76] This result follows from the nature of sentencing ranges: they are “not hard and fast rules” and “cannot be binding in either theory or practice” (Friesen, at para. 37; Parranto, at para. 36; R. v. Wright (2006), 2006 CanLII 40975 (ON CA), 83 O.R. (3d) 427 (C.A.) (“Wright 2006”), at para. 22). Instead, the maximum penalty in place at the time an offence is committed represents the “legal risk” that a person is assuming by committing the act (R.O., at para. 51). Anything below that maximum penalty is a sentence that was available at the time of the offence, even if it was outside a non-binding sentencing range at the time, and cannot be said to have been “varied” within the meaning of s. 11(i).
[77] There is no constitutional reason or compelling logical justification for continuing to enforce artificially lenient common law sentencing ranges for historical offences (R.O., at para. 52; Stuckless, at para. 61). So long as the sentence imposed does not exceed the maximum penalty at the time of the offence, sentencing judges should base their reasoning on the most accurate and up-to-date understanding of the gravity of the offence (Friesen, at para. 87; R.O., at para. 50; Stuckless, at para. 110; R. v. X, 2022 QCCA 266, at para. 22).
[78] Indeed, this Court has signalled, both in Friesen and subsequent cases, that its directive to increase sentences applies retrospectively. For example, Friesen cites the Ontario Court of Appeal’s decision in Stuckless extensively, including to illustrate the proposition that courts are “justified in departing from precedents in imposing a fit sentence” (para. 110, citing Stuckless, at paras. 61-62). The court in Stuckless spoke explicitly about the need to depart from dated precedents in fashioning a sentence for offences committed prior to the increase in maximum penalties (paras. 61-62).
[79] To the same effect, in Bertrand Marchand, the Court applied the Friesen principles on sentencing for offences committed between 2013 and 2015 — before the maximum penalties were increased — stating that “courts should depart from dated precedents that do not reflect society’s current awareness of the impact of sexual violence on children” (para. 47).
(iii) Historical Jurisprudence May Be Considered, but Only Insofar as It Aligns With Contemporary Principles
[80] While contemporary case law should guide the analysis, sentencing judges are entitled to consider dated case law insofar as it aligns with contemporary principles. I agree with the Alberta Court of Appeal’s direction in M.A.C. that pre-Friesen sentencing decisions are not automatically irrelevant, particularly where the facts are highly analogous; rather, “the sentencing court must carefully consider those precedents in light of Friesen and whether those sentences appropriately reflect the harm to the children” (para. 50).
[81] Generally speaking, the usefulness of a historical decision will depend on its factual comparability to the case at hand, as well as on the degree to which relevant legal principles, societal attitudes, and legislative provisions have evolved since the decision was rendered. For example, it is safe to assume that historical jurisprudence will not be useful, at least not on its face, when considering offences that are now viewed through a markedly different lens.
[82] As this Court’s decision in Friesen makes clear, society, the common law, and legislation have all undergone significant evolution in their treatment of sexual offences against children. Sentencing judges who rely on historical case law in fashioning a sentence for such offences should interpret the reasoning and dispositions in that case law through the lens of Friesen (R. v. Gargan, 2023 NWTCA 5, [2023] 11 W.W.R. 31, at para. 19; R. v. L.A., 2023 SKCA 136, at para. 40). A one-to-one correspondence with most earlier decisions is neither possible nor appropriate (Friesen, at para. 108; R. v. Williams, 2020 BCCA 286, 396 C.C.C. (3d) 59).
[83] To reiterate, sentencing judges are entitled to consider historical precedents, though only insofar as they align with contemporary sentencing principles. This should not be taken to suggest that sentencing judges are required to consider such precedents or that declining to do so is an error in principle.
(b) Application to the Approaches Taken in the Courts Below
[84] The correct approach, as I have explained, is to sentence the offender in accordance with the principles and ranges prevailing at the time of sentencing, while respecting the maximum penalty in place at the time of the offence. Sentencing judges are entitled to consider relevant historical case law in this exercise, though they must do so through the lens of Friesen. Sentencing judges are not required to consider historical case law, and declining to do so is not an error in principle that could warrant appellate intervention.
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[88] As I have explained, the 2015 increase in maximum penalties was not a standalone basis for increasing sentences but rather signalled an underlying shift in society’s understanding of the gravity of sexual offences against children. While the retrospective application of the increased maximum penalties themselves is constitutionally barred, the revised common law sentencing regime that reflects our improved understanding is not. Wakeling J.A. was incorrect to adjust contemporary common law sentencing starting points in conformity with the maximums in place at the time of the offence.
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[98] ... I would take this opportunity to reiterate this Court’s guidance on starting points as set out in Parranto and Friesen.
[99] In Parranto, this Court held that starting points are a permissible form of guidance for appellate courts to provide to sentencing judges. This Court confirmed that a legitimate role of appellate courts is “to provide guidance to assist sentencing judges in minimizing idiosyncrasies and to promote consistency in approaches to sentencing”; however, we were clear that “there is no one uniform approach to sentencing in Canada” and that “[a]ttempts to create a single uniform approach are . . . misguided” (para. 34).
[100] Not all starting points are created equal. In Friesen, we addressed the practice of defining starting points for sexual offences based on the degree of physical interference involved in the offence. We held that this practice is not itself erroneous but that courts that place undue emphasis on the type of physical act committed will be prone to various errors. For instance, it is an error to treat the presence or absence of penetration as “the cornerstone of a sentencing range” (Friesen, at para. 141). Parliament has abolished outdated offences that hinged on the presence of penetration, and courts must avoid resurrecting them by way of sentencing distinctions (ibid.; R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, at paras. 33-34).
[101] Additionally, it is an error to assume any definitive correlation between the type of physical act involved in the offence and the harm to the victim (Friesen, at para. 143): “. . . depending on the circumstances of the case, touching that is both extensive and intrusive can be equally or even more physically intrusive than an act of fellatio, cunnilingus, or penetration” (para. 146).
[102] Perhaps most importantly, in Friesen, we instructed courts not to conceptualize the severity of the interference in terms of a hierarchy of physical acts:The type of physical act can be a relevant factor to determine the degree of physical interference. However, courts have at times spoken of the degree of physical interference as a type of ladder of physical acts with touching and masturbation at the least wrongful end of the scale, fellatio and cunnilingus in the mid-range, and penile penetration at the most wrongful end of the scale (see R. v. R.W.V., 2012 BCCA 290, 323 B.C.A.C. 285, at paras. 19 and 33). This is an error — there is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference. . . . Similarly, it is an error to assume that an assault that involves touching is inherently less physically intrusive than an assault that involves fellatio, cunnilingus, or penetration. [Emphasis added; para. 146.] [103] In the court below, Wakeling J.A. set out to construct starting points for sexual interference. Relying on his decisions in S.L.W. and Quintero-Gelvez, Wakeling J.A. established three subsets of the offence: the most egregious subset, which “is reserved for sexual assaults that most severely degrade the victim’s physical and psychological integrity — penile penetration of the victim’s vagina or anus”; the more egregious subset, which “captures fellatio, cunnilingus, penetration of the vagina or anus by an object or a body part other than the penis, and crimes in which the offender gropes the victim’s breast or genitals underneath clothing, causes the victim to touch the offender’s genitals, and undresses and exposes the victim”; and the egregious subset, which includes acts with the “same degree of seriousness as kissing and groping over clothes” (para. 192 (emphasis deleted)).
[104] Appellate courts are entitled to identify subsets of an offence and to propose sentencing ranges that will generally be appropriate for those subsets (see R. v. K. (A.J.), 2022 ONCA 487, 162 O.R. (3d) 721). However, dividing an offence like sexual interference into rigid subsets defined solely by the type of physical act committed, as Wakeling J.A. did here, runs counter to this Court’s guidance in Friesen. Sentencing guidelines must be sufficiently flexible to accommodate the reality that “physical acts such as digital penetration and fellatio can be just as serious a violation of the victim’s bodily integrity as penile penetration” (para. 146). Appellate courts exceed their proper role by attempting to dictate a range of sentences based solely on the type of act committed.
[105] I would conclude with a reminder that sentencing ranges and starting points are not binding and that sentencing judges do not err simply by departing from them (Friesen, at para. 37; Lacasse, at para. 67; McDonnell, at paras. 33-34; Wright 2006, at para. 22). Sentencing is ultimately a discretionary, fact-specific, and individualized exercise (Nahanee, at paras. 40 and 42; Lacasse, at para. 58; R. v. Hills, 2023 SCC 2, at para. 62; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 4; M. (C.A.), at para. 92). Any suggestion by an appellate court that sentencing judges are obligated to abide by stringent judicially crafted categories, particularly those defined solely by the type of physical act committed, is wrong in law.
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