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Criminal - Sentencing - Sex Offences (3)

. 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.


[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.


[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.


[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:

[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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Last modified: 20-02-24
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