Sentencing in Canada for Sexual Offences Against Children

 Nick Whitfield and Joseph Neuberger

Individuals charged in Canada with sexual assault, sexual interference, or sexual exploitation in relation to young persons under the age of 16 face harsh penalties. Trials involving children are complex and present challenging evidentiary issues. The effects of a guilty verdict will be devastating. Canadian courts today impose lengthy sentences, and the stigma that follows a conviction is life altering. Persons charged with a sexual offence against a minor require a robust and experienced criminal defence.

In R v Friesen, 2020 SCC 9, the Supreme Court directed lower courts to impose higher sentences for sexual offences against children. The justices were clear that such offences are inherently violent crimes that inflict profound and chronic harm upon victims, families, and communities. The decision directed judges to consider a crime’s inherent wrongfulness when determining proportionate sentences and reminded appeal courts that the sentencing ranges of the Criminal Code are meant as guidelines, not ironclad templates – lower courts will not be in error for departing upward from a legislated range. The Supreme Court was clear: “Sentences for these crimes must increase.”

Conditional Sentences Rarely Imposed

A person convicted of a sexual assault or sexual interference offence against a child in Canada is likely to face significant jailtime. The Court of Appeal for Ontario confirmed in R v BM, 2023 ONCA 224 (CanLII) at para 2, that “[a]bsent limited exceptional circumstances, conditional sentences for sexual offences against children will very rarely be appropriate.” Exceptional circumstances can include medical hardships untreatable at a correctional facility (R v MM, 2022 ONCA 441 at para 16).

Factors for Determining an Appropriate Sentence

Friesen made important clarifications about the impact of sexual violence on children. Contrary to earlier case law, a child can never provide “implied consent” to sexual contact; an absence of objective physical harm will not provide mitigation in sentencing; and the degree of physical invasiveness of sexual abuse does not correlate necessarily with the degree of harm inflicted. Judges post-Friesen will disregard any precedents claiming otherwise and must consider instead the following principles:

• Sexual abuse committed on multiple occasions and for longer periods will attract higher sentences.
• A victim’s young age will be a significant aggravating factor, but courts must impose proportionate sentences for offences against adolescents.
• The risk of reoffending is relevant both to child protection and to offender rehabilitation.
• An offender who abused a position of trust, such as a teacher of family member, should receive a lengthier sentence than a stranger to the child.
• “Grooming” a child will be an aggravating factor even where no trust relationship exists.
• Issuing threats of violence or retribution will be an aggravating factor.

Sentence Ranges

As to the probable length of a sentence, Friesen did not impose a precise range but stated that “mid-single digit penitentiary terms for sexual offences against children are normal” (para 114).

• For sexual abuse that involves touching over a prolonged duration, a sentence will range from 2 to 5 years.
• For more invasive sexual touching, and where there is a position of trust between adult and child, sentences can range between 7 and 10 years.
• A first-time offender convicted of an isolated incident of sexual intercourse with a child may receive a sentence in the mid- to upper single digits, between 5 to 10 years.

Lower courts have taken note. In R v SDC, 2023 ONSC 6010, the Ontario Superior Court of Justice this year imposed a sentence of two years less a day of detention and three years’ probation for the sexual interference of a seven-year-old girl, the perpetrator’s daughter. The court remarked at paragraph 60: “While the act … involved a one-time touching, I am mindful [that Friesen] cautioned against downgrading the wrongfulness of the offence where the sexual violence does not involve penetration…”. Appeal court decisions have likewise followed suit, such as R v CL, 2023 ONCA 691, which upheld a six-and-a-half-year sentence imposed on the appellant for the violent sexual abuse of his stepdaughter.

The consequences of a conviction for a sexual offence against a child are extremely serious. Persons charged with the sexual abuse of a minor require immediate expert legal advice and should retain experienced legal counsel for a robust criminal defence.