Sentencing

• Author: Daniel Brown/Jill Witkin
• Pages: 471-503



16

Sentencing

I. Overview ................................................ 

II. Available Sentences ....................................... 

A. Mandatory Minimums and Statutory Maximums .......... 

B. Conditional Sentences ............................... 

C. Sentencing Ranges .................................. 

D. Dangerous Oenders and Long-Term Oenders .......... 

III. Ancillary Orders .......................................... 

A. Sex Oender Registries ............................... 

B. DNA Orders ....................................... 

C. Section  Orders .................................. 

D. Weapons Prohibition Orders .......................... 

IV. Considerations in Crafting a Fit Sentence ...................... 

A. Aggravating Factors .................................. 

B. Mitigating Factors ................................... 

C. Victim Impact Statements ............................ 

D. Risk Assessments and Pre-Sentence Reports ............. 

E. Consecutive Versus Concurrent Sentences ............... 

F. The Kienapple Principle .............................. 

V. Preparation .............................................. 

A. Crown Preparation .................................. 

B. Defence Preparation ................................. 

Appendix . Sentencing in Sexual Oence Cases:

Available Sentences and Ancillary Orders ...................... 

© [2020] Emond Montgomery Publications. All Rights Reserved.

Prosecuting and Defending Sexual Oence Cases

I. Overview

This chapter will identify and explain the features of the sentencing regime that apply

when an accused has been convicted of a sexual oence, including the applicable

mandatory minimum sentences, the availability of conditional sentences, and the use

of orders under the Sex Oender Information Registration Act1 and section 161 of the

Criminal Code.2 This chapter will also help the reader to determine whether relevant

legislative changes apply retroactively to sentencing for historical sexual oences.

II. Available Sentences

This section will describe the sentencing parameters for the oences outlined in

Chapter2, Sexual Oences, including the applicable mandatory minimums, statu-

tory maximums, sentencing ranges, and the availability of conditional sentences, as

well as dangerous and long-term oender designations.

A. Mandatory Minimums and Statutory Maximums

Over the course of several recent Criminal Code amendments, Parliament has either

introduced or increased mandatory minimum penalties for sexual oences, especially in

cases where the victim is under 16 years of age. Judges may also now exceed the maximum

sentence imposed on an oender for some intimate partner oences. This provision

applies where: (1) the oender is convicted of an indictable oence involving violence

against an intimate partner; and (2) the oender has previously been convicted of any

oence involving violence against an intimate partner. Where the oender meets these

criteria, the court may impose a term of imprisonment that exceeds the maximum term

provided for the oence convicted, subject to an enumerated list of maximum pen-

alties (see s 718.3(8) of the Criminal Code). Parliament has also increased statutory

maximum penalties in cases involving younger victims. These sentencing provisions

do not operate retrospectively. An accused person who commits an oence before

new minimum or maximum penalties were enacted is not subject to these penalties at

sentencing.3

For a sexual assault under section 271 of the Criminal Code if the Crown proceeds

by indictment, the mandatory minimum sentence of one year’s imprisonment only

applies in cases where the victim is under 16 years of age.4 Likewise, on summary con-

viction, the mandatory minimum sentence—six months—is reserved for cases with

1 SC 2004, c 10 [SOIRA].

2 RSC 1985, c C-46.

3 See R v Poulin, 2019 SCC 47 at para 3.

4 The mandatory minimum penalty in s 271(a) of the Criminal Code has been found to violate

s12 of the Charter and is not saved by s 1 where the Crown proceeds by indictment. See e.g.

R v Laerty, 2020 NWTSC 4; R v Deyoung, 2016 NSPC 67; R v ERDR, 2016 BCSC 684; R v

YH, 2019 YKSC 28; R v MacLean, 2018 NLSC 209.

© [2020] Emond Montgomery Publications. All Rights Reserved.

Chapter  Sentencing 

victims under the age of 16.5 The statutory maximums are 10 years’ imprisonment

(14years if the victim is under the age of 16) when the Crown proceeds by way of

indictment, and 18 months (two years less a day if the victim is under the age of 16)

when the Crown proceeds by summary conviction.6

Sexual assault with a weapon, threats to a third party, or causing bodily harm under

section 272 and aggravated sexual assault under section 273 are straight indictable of-

fences, and both attract a five-year mandatory minimum sentence when the victim is

under the age of 16.7 Mandatory minimum penalties of four, five, and seven years also

apply in circumstances that involve criminal organizations or the use of a firearm in

the commission of the oence. The statutory maximum under section 272 is 14 years’

imprisonment (life imprisonment if the victim is under the age of 16), and section 273

may attract a life sentence, regardless of the victim’s age.8

For the oences of sexual interference, invitation to sexual touching, and sexual

exploitation (under ss 151, 152, and 153, respectively), the minimum punishment is

one year’s imprisonment for an indictable oence, and 90 days’ imprisonment when

the oence is prosecuted summarily.9 The statutory maximum for these oences is 14

years on indictment and two years less a day on summary conviction.10

B. Conditional Sentences

A conditional sentence is a custodial sentence an oender serves under conditions in

the community instead of in jail. This new type of sentence was first introduced when

broad amendments to the sentencing provisions of the Criminal Code came into force

on September 3, 1996.11 Through these sentencing amendments, Parliament sought

to reduce the reliance on custody as a sanction and to expand the use of restorative

justice principles in sentencing.12

5 While provincial courts do not have the ability to strike down legislation, several courts have

held that the mandatory minimum sentence of six months where the Crown proceeds sum-

marily violates s12 of the Charter. See e.g. Rv Drumonde, 2019 ONSC 1005 (where the judge

was sitting as a summary conviction appeal court, so this decision is binding on other summary

conviction cases in Ontario); R v CVEB, 2019 BCPC 118; RvMM (7 June 2018), Barrie, Ont,

3811-998-16-3616-00, DawsonJ (OntCJ); Rc Gagnon, 2018 QCCQ 9569.

6 Criminal Code, s 271.

7 Some courts have struck down the mandatory minimum sentence as unconstitutional. See e.g.

R v MJ, 2016 ONSC 2769; Directeur des poursuites criminelles et pénalesc Trottier, 2018 QCCQ

4814, 2019 QCCQ 1205.

8 Criminal Code, s 272.

9 Numerous courts across Canada have struck down the mandatory minimum sentence for

sexual interference as unconstitutional. See e.g. R v BJT, 2019 ONCA 694; Caron Barrette c

R, 2018 QCCA 516; R v Hood, 2018 NSCA 18; RvJED, 2018 MBCA 123; R v Scofield, 2019

BCCA 3; R v Ford, 2017 ABQB 322; R v SJP, 2016 NSPC 50; R v Sarmales, 2017 ONSC 1869;

RvML, 2016 ONSC 7082.

10Criminal Code, ss 151-53.

11See R v Proulx, 2000 SCC 5 at paras 14-20.

12Ibid at para 16.

© [2020] Emond Montgomery Publications. All Rights Reserved.