In Canada, sexual offences involving children are among the most serious crimes an individual can be charged with. This, however, has not always been reflected in the sentences imposed on individuals convicted of sex offences involving children. In the past, those convicted of sexual offences including those involving children were sentenced significantly more leniently than they are today.
In a 2010 case, R v. P.M., the Ontario Court of Justice sentenced a father to five years in prison after he pled guilty to sexual assault, incest, sexual interference, and possession of child pornography for repeatedly raping his young daughter and filming the attacks
At the time, courts across Ontario routinely imposed three-to-five-year sentences on individuals convicted of sexually assaulting their children. To surpass a five-year prison sentence, Ontario courts often required additional aggravating factors including a pattern physical violence or threats of physical violence, or severe psychological, physical, or emotional harm.
The law has also been summarized by Justice Moldaver at the Ontario Court of Appeal in R. v. D.D. [2002] at para 44, as follows:
“[44] To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate.
Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted.”
More recently, there has been a shift in the way courts throughout the country sentence those convicted of sexual offences against children. With a deeper understanding of the lifelong trauma suffered by victims of sexual assault, courts have begun to take a more hardline approach to sentencing these types of offenders. The federal government has also enacted legislation codifying deeper protections for child victims of sex assault and harsher penalties for offenders.
For example, in 2015, the Canadian government enacted the Tougher Penalties for Child Predators Act. The Act amended the Criminal Code, the Canada Evidence Act and the Sex Offender Information Act to enhance penalties for those who are convicted, ensure spouses are competent and compellable witnesses in child pornography cases and to increase reporting obligations for sex offenders.
In 2020, the Supreme Court of Canada took things a step further with their decision in R. v. Friesen. The case involved a man who sexually assaulted the four-year-old daughter of a woman he went home with after a night out. When the child’s cries awoke another individual sleeping in the home, a family friend removed the child from the room. In an attempt to get the girl back, Friesen threatened the mother, stating he would tell the police she had sexually abused her infant son if she did not bring the girl back.
Friesen pled guilty to sexual interference and extortion. He was sentenced six years in prison for sexual interference and six years for extortion, to be served concurrently. On appeal, the sentence for sexual interference was reduced to four and a half years. In 2019, the Supreme Court of Canada heard the case and restored the six-year sentence imposed by the trial judge.
In its reasoning, the Court sent a very clear message: the sentences imposed on those convicted of sexual offences against children must increase. The decision went on to outline appropriate sentencing ranges for those convicted of such offences. The Court stated that the appropriate sentence for an individual convicted of a sexual offence against a child should be an upper single digit to lower double digit prison sentence. This shows a significant upward departure from the sentences imposed in the past for similar offences.
The Court provided several reasons for this sentencing range. The Court reasoned that since the maximum penalties for many child sex offences have been increased, the average sentence imposed on offenders should also increase. The Court emphasized the importance of separating these types of offenders from society and punishing them severely as a method of general and specific deterrent.
The Friesen decision, along with other sexual assault decisions rendered by the Supreme Court in 2020 have sent a strong message to the lower courts that the sentences for those convicted of sexual offences against children must reflect the seriousness of these offences.
