Sentencing for Sexual Offences Against Children and Youth: Mandatory Minimums, Proportionality and Unintended Consequences.

• Author: Benedet, Janine
• Position: Canada

Introduction

1. Applying Mandatory Minimum Sentences to Sexual Offences

   1. Legislative History

   2. Supreme Court of Canada Treatment of Mandatory Minimum Sentences

   3. Pre-Mandatory Minimum Sentencing for Sexual Offences Against Children and Youth

   4. Sentencing for Sexual Offences After Mandatory Minimum Sentencing

2. Constitutionality of Mandatory Minimum Sentences for Sexual Offences Against Children and Youth

   1. Criticisms of Mandatory Minimum Sentences

   2. Ongoing Problems with Sentencing for Child Sex Offences Conclusion

   Introduction

   In the past fifteen years, Parliament has significantly altered Canadian criminal law by introducing numerous mandatory minimum sentences for a range of Criminal Code offences. Prior to this time, mandatory sentences were relatively rare, especially for first offences and for offences prosecuted by summary conviction; more recently the Criminal Code grew to include more than 80 minimum sentences among its approximately 450 offences. (1)

   Until very recently, scholars and courts have focused their attention on the mandatory sentences applicable to drug and gun crimes (with Don Stuart offering one of the earliest examples of these critiques (2)), or on the mandatory life sentence for murder and the distorting effects it may produce with respect to criminal defences. (3) Scholars have considered whether mandatory minimum sentences are unconstitutional, with attention to their particular impact on Indigenous and racialized offenders. (4) In the case of murder, commentators have also examined how the Crown could leverage mandatory life sentences to obtain guilty pleas to manslaughter in cases where battered women kill their abusers in self-defence. (5)

   In 2005, Parliament attached a number of mandatory minimum penalties to the sexual offences in the Criminal Code, but only where the victims are children or youth. (6) Additional mandatory minimums were added to these offences, and existing ones increased, in 2012. (7) Sexual offences against children and youth have received comparatively little attention in the debates about mandatory minimums, although a number of recent judicial decisions have found some of these provisions to be unconstitutional. (8)

   I argue in this article that analyzing mandatory minimum sentences for sexual offences requires more than merely applying the critiques of mandatory minimums developed in other contexts. This article accepts and proceeds from the premise that sexual assault is a gendered crime that reflects and reinforces sex inequality. (9) This also applies to sexual offences against youth victims, where the gender gap narrows but is still substantial: girls under sixteen are four times as likely as boys to be victims of sexual abuse, and offenders are overwhelmingly male for youth victims of both sexes. (10) The long history of sex discrimination in society has been reflected in the substantive law of sexual offences, as well as in the application of those laws in the criminal trial process, and in the sentencing of offenders. (11) The overrepresentation of Indigenous and racialized persons among those convicted of criminal offences needs to be analyzed in light of the fact that in the context of sexual offences, many crimes are intraracial, meaning that there are disproportionate numbers of Indigenous and racialized victims as well. (12) This disproportionality is more pronounced for child victims, since a large number of these offences are committed by male family members. It is important to consider whether and how these facets of the social context in which sexual assaults are committed affect the critiques of mandatory minimums or, to turn the question on its head, whether mandatory minimum sentences in some way might actually advance the project of addressing the inequalities at the heart of sexual offences.

   My conclusion is that mandatory minimum sentences have not contributed to addressing these inequalities. There is some evidence that mandatory minimum sentences have coincided with rising sentences, at least for the offence of sexual interference. However, there is also evidence that some judges are simply substituting a short minimum penalty of imprisonment, sometimes served intermittently, possibly followed by probation, for what would otherwise have been a longer conditional sentence of imprisonment that might have included terms akin to house arrest. I argue that this development offers no real benefit to victims of sexual violence and has cut off an important dialogue among judges and other criminal justice system actors about harm, proportionality and fairness in sentencing for sexual offences against this group of victims.

   With that context in mind, I turn to a consideration of the constitutionality of mandatory minimums in the specific context of sexual offences against children and youth. I conclude that while many of the same concerns that have been raised about mandatory minimums for gun and drug crimes apply with equal force to sexual offences, especially where those minimums are relatively lengthy, sentencing for sexual offences is particularly vulnerable to stereotypical reasoning that falls back into discredited reasoning about lack of harm, risk and victim-blaming. Whether or not mandatory minimum sentences of imprisonment come to be seen as per se unconstitutional, (13) in the sense that a non-custodial option must always be available, this discredited reasoning needs to be recognized and rejected.

   This article should not be taken as suggesting that longer terms of incarceration are necessarily progressive or further the equality interests of women. It is important to pay attention to Don Stuart's caution that "the criminal law is a blunt instrument and should be used with restraint." (14) He reminds us that while "[p]rison sentences for violent offences are easy to justify," we should avoid "glibly urging ever longer prison sentences for sexual offenders". (15) The question of a truly feminist remedy for sexual assault is a larger project that has so far received much less attention than other aspects of the criminal justice system's response to sexual violence. (16) This article will not solve that problem. Rather, it aims to demonstrate a narrower point. Despite the introduction of minimum sentences, there continue to be sentencing decisions in which those who sexually abuse young people, and in particular teenage girls, are sentenced based on reasoning that minimizes the harm caused and the blameworthiness of offenders, even as appellate courts have called for such crimes to be taken seriously. Mandatory minimum sentences do not address this problem and in some cases make it worse. Mandatory minimum penalties do nothing to address the discriminatory reasoning at the heart of inadequate sexual assault sentences.

1. Applying Mandatory Minimum Sentences to Sexual Offences

   1. Legislative History

      Mandatory or presumptive sentences are not entirely new to the Canadian criminal law of sexual offences. At the most extreme end, rape was for many years a capital crime in Canada, although it appears that such sentences were rarely, if ever, carried out. (17) However, with the major reforms to sexual offences in the 1980s, Canada adopted a scheme of escalating maximum penalties based on the perceived seriousness of the offence, without any prescribed minimum punishment. (18) Thus sexual assault, an offence created in 1983, was split into three gradations based on the amount of additional force, use of weapons, or injury accompanying the non-consensual sexual contact. Sexual assault had a maximum penalty of ten years' imprisonment when prosecuted by indictment, and six months (later raised to eighteen months in 1994 (19)) when prosecuted by summary conviction. Sexual assault causing bodily harm was a straight indictable offence with a maximum of fourteen years' imprisonment and aggravated sexual assault had a maximum penalty of life imprisonment. (20)

      Sexual offences against children were modernized in 1988. (21) Parliament created the new offences of sexual interference and invitation to sexual touching. (22) Neither of these offences had minimum penalties. (23) In addition, the general sexual assault offences continued to apply to child victims. The minimum age of consent to sexual activity with an adult was set at fourteen years of age, and then raised to sixteen in 2008. (24) In the 1990s and 2000s, additional offences were created to address other forms of child sexual exploitation and abuse. In particular, Parliament added offences relating to the prostitution of young people (1988), (25) child pornography (1993) (26) and internet luring (2002). (27)

      Minimum penalties for sexual offences against children first appeared in 2005. At this time, the Liberal minority government introduced Bill C-2, whose primary purposes were to respond to the Supreme Court of Canada's decision on the child pornography offence in R v Sharpe (28) and to make amendments to better address the needs of vulnerable witnesses. (29) The original version of the Bill did not contain mandatory minimum penalties, but at the committee stage Conservative opposition members lobbied hard for the inclusion of such provisions, with the explicit goal of precluding the use of conditional sentence orders (CSOs): a sentence of imprisonment served in the community rather than in jail. A CSO is not available where the offence has a mandatory penalty of imprisonment. As a result of this pressure, mandatory minimum sentences of imprisonment were added to ten child sexual abuse offences. (30)

      Some Conservative Members of Parliament expressed concern that the minimum penalties were too low and would lead to judges imposing the new minimum periods of incarceration in cases that would have previously attracted longer conditional sentences. (31) Nonetheless, they decided to support the amended Bill. When the Conservatives formed a minority government later in 2005...