Sentencing

• Author: Lisa Joyal/Jennifer Gibson/Lisa Henderson/David Berg/Kasandra Cronin
• Pages: 613-686

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Sentencing

13

I. Overview ................................................ 614

II. General Sentencing Considerations in Child Abuse

Cases: R v Friesen .........................................614

III. Codified Purposes and Principles of Sentencing

in Child Abuse Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 621

IV. Mitigating and Aggravating Factors ........................... 628

V. Victim Impact and Community Impact ........................ 642

VI. Mandatory Minimum Sentences ............................. 645

VII. Conditional Sentences and Probation Orders .................. 651

VIII. Ancillary Orders .......................................... 654

IX. Dangerous and Long-Term Offenders ......................... 674

© [2023] Emond Montgomery Publications. All Rights Reserved.

Prosecuting and Defending Oences Against Children

I. Overview

This chapter discusses the main sentencing issues that need to be considered when-

ever an offender is to be sentenced for an offence in respect of a child. The chapter will

begin by explaining the purpose and principles of sentencing in child abuse cases, the

mitigating and aggravating factors that may apply, victim impact issues, the mandatory

minimums, and ancillary orders. The chapter will then conclude with a brief discus-

sion about dangerous and long-term offenders who commit offences against children.

II. General Sentencing Considerations in Child Abuse

Cases: R v Friesen

The determination of a just and appropriate sentence has been described as a highly

individualized exercise that goes beyond a purely mathematical calculation.1 Watt JA

has defined sentencing as involving a “profoundly contextual fine balancing exercise

of competing, if not antagonistic principles, objectives, and factors.”2 This difficult

exercise of balancing competing, if not antagonistic, principles is nowhere more

clearly illustrated than in the sentencing of those who commit offences against chil-

dren. In this context, it is particularly challenging to reconcile, for example, the prin-

ciple militating toward the avoidance or minimization of custodial sentences wherever

possible with the principle that emphasizes denunciation and deterrence in cases

involving the abuse of children.

Parliament’s direction on sentencing in child abuse cases is reflected in the legisla-

tive amendments made to the Criminal Code over the past two decades. Through the

enactment of child-specific offence and sentence provisions, the creation of man-

datory minimum sentences, and the elevation of existing mandatory minimum and

maximum sentences for a number of offences against children, Parliament has “made

it very clear that the protection of children is a basic value of Canadian society which

the courts must defend.”3 It has been noted that, unlike many other categories of

offences, “[t]he protection of children from harm is a universally accepted goal.”4

As stated by LaForme JA, it is also important “to recall that … the reason the

courts were being called upon to focus on sentencing in this type of case is because of

the increasing number of them over the past 20 years. Partly because of this increase,

the courts’ strict sentencing has evolved to respond to it.”5 For example, in recent

years, police-reported offences against children have been on the rise. Government

statistics show that police-reported incidents of sexual violations against children

1 R v Lacasse, 2015 SCC 64 at para 58.

2 R v Jacko, 2010 ONCA 452 at para 48.

3 R v Allen, 2012 BCCA 377 at para 60. See also R v Woodward, 2011 ONCA 610 at para 76.

4 R v Sharpe, 2001 SCC 2 at para 175.

5 R v B (R), 2013 ONCA 36 at paras 26-28.

© [2023] Emond Montgomery Publications. All Rights Reserved.

Chapter 13 Sentencing 

increased by 23 percent from 2010 to 2015.6 Even more pronounced is the 156 per-

cent increase in police-reported incidents of child pornography over that same time

frame.7 In addition, on July 27, 2021, Statistics Canada released its data on police-

reported crime in Canada during 2020 (which included data from the start of the

global COVID-19 pandemic). Incidents of child luring in 2020 climbed by another

37 percent compared to the previous five-year average, and incidents of making and

distributing child pornography climbed by another 89 percent.8

One of the overarching values to be applied when sentencing offenders for the

abuse of children is that the principles of denunciation and deterrence are to be ele-

vated and made paramount. Therefore, these two general principles are frequently

the focus of defence and prosecutor submissions with respect to sentencing, and

they are likewise the focus of the sentencing judges’ reasons for decision in most

cases. Accordingly, denunciation and deterrence are discussed in greater detail below.

Of course, all other relevant factors need to be considered, but these principles are

always at the forefront in the context of offences against children.

In the meantime, the current judicial thinking on sentencing those who commit

offences against children is explained in the Supreme Court of Canada’s 2020 deci-

sion in R v Friesen.9 In this landmark case, the Supreme Court held that Canadian

courts must impose higher sentences for offences involving the sexual abuse of chil-

dren in order to more fully reflect the concerns of Parliament and Canadian society

about the harmfulness and wrongfulness of child sexual abuse. The Supreme Court

also established a new comprehensive framework for the determination of fit sen-

tences in child abuse cases. Although the Friesen decision is a must-read for all those

who do child abuse work, some of the main principles from the decision are sum-

marized below:

• Protection of children from harm is one of the most fundamental values of

Canadian society. It is also the underlying legislative objective of the statutory

provisions in the Criminal Code respecting sexual offences against children.10

6 Canada, Department of Justice, “Sexual Violations Against Children and Child Pornography” in

JustFacts (May 2017), online: <http://www.justice.gc.ca/eng/rp-pr/jr/jf-pf/2017/may03.html>.

7 Ibid.

8 Statistics Canada, After Five Years of Increases, Police-Reported Crime in Canada Was Down in

2020, But Incidents of Hate Crime Increased Sharply (Ottawa: Statistics Canada, 27 June 2021),

online: <https://www150.statcan.gc.ca/n1/daily-quotidien/210727/dq210727a-eng.htm>. See

also the helpful statistical summary at Canadian Centre for Child Protection, News Release,

“New Statistics Canada Crime Data Shows Victimization of Children Intensified During

Pandemic” (27 July 2021), online: <https://www.protectchildren.ca/en/press-and-media/

news-releases/2021/stats-canada-crime-data-pandemic>.

9 R v Friesen, 2020 SCC 9.

10Ibid at paras 42-65.

© [2023] Emond Montgomery Publications. All Rights Reserved.