Non-familial Child Sexual Abuse: Sentencing Trends in Alberta, Ontario & Québec

Transcription

1 Non-familial Child Sexual Abuse: Sentencing Trends in Alberta, Ontario & Québec Prepared by: Angela M. Long, B.A., LL.B., LL.M., LL.D. (Candidate) Policy Analyst Cornwall Public Inquiry Louise-Michelle Tansey-Miller, B.A., LL.B., LL.L. (in progress) Research Assistant Cornwall Public Inquiry

2 1. INTRODUCTION STATISTICAL REVIEW SENTENCING LAW & POLICY...20 A. THEORY...22 B. HISTORY...24 I. Deterrence...26 a. General Deterrence...26 b. Specific Deterrence...27 II. Incapacitation...27 III. Rehabilitation...28 IV. Retribution...28 V. Denunciation...29 C. SENTENCING REFORM IN D. SUMMARY...36 E. SPECIFIC SENTENCING CONSIDERATIONS CONCERNING CHILD SEXUAL ABUSE...38 F. AGGRAVATING AND MITIGATING FACTORS IN CHILD SEXUAL ABUSE CASES...46 G. SENTENCING OPTIONS...49 I. Imprisonment...49 II. Conditional Sentence...53 III. Probation...55 IV. Fines...55 V. Suspended Sentence...56 VI. Discharges...56 VII. Prohibitions...57 VIII. Peace Bonds...59 IX. Other Options THE OFFENCES...63 A. CRIMINAL CODE OFFENCES...64 B. CURRENT OFFENCES...65 I. Sexual Interference, Invitation to Sexual Touching and Sexual Exploitation...65 II. Sexual Assault...68 III. Other Sexual Offences...70 C. HISTORIC SEXUAL OFFENCES...74 I. Offences Repealed in a. Sexual Intercourse with a Female Under 14, or between 14 and b. Gross Indecency...75 c. Buggery...75 II. Offences Repealed in a. Rape...77 b. Attempted Rape...78 c. Indecent Assault on a Male METHODOLOGY DATA & OBSERVATIONS...87 A. GENERAL STATISTICS...89 B. SENTENCING STATISTICS I. Alberta a. General Sentencing Statistics b. Sentencing Statistics Single Charge Cases c. Sentencing Statistics Historical Cases d. Sentencing Statistics Relationship of Offender/Victim

3 e. Sentencing Statistics Prior Criminal Record for Sexual Abuse f. Sentencing Statistics Sex of the Victim g. Sentencing Statistics Guilty Plea v. Trial h. Sentencing Statistics Age of Victim i. Sentencing Statistics Total Length of Supervision II. Ontario a. General Sentencing Statistics b. Sentencing Statistics Single Charge Cases c. Sentencing Statistics Historical Cases d. Sentencing Statistics Relationship of Offender/Victim e. Sentencing Statistics Prior Criminal Record for Sexual Abuse f. Sentencing Statistics Sex of the Victim g. Sentencing Statistics Guilty Plea v. Trial h. Sentencing Statistics Age of Victim i. Sentencing Statistics Total Length of Supervision III. Québec a. General Sentencing Statistics b. Sentencing Statistics Single Charge Cases c. Sentencing Statistics Historical Cases d. Sentencing Statistics Relationship of Offender/Victim e. Sentencing Statistics Prior Criminal Record for Sexual Abuse f. Sentencing Statistics Sex of the Victim g. Sentencing Statistics Guilty Plea v. Trial h. Sentencing Statistics Age of Victim i. Sentencing Statistics Total Length of Supervision IV. Inter-provincial Comparison a. General Sentencing Statistics b. Sentencing Statistics Single Charge Cases c. Sentencing Statistics - Historical cases d. Sentencing Statistics Relationship of Offender/Victim e. Sentencing Statistics Prior Criminal Record for Sexual Abuse f. Sentencing Statistics - Sex of Victim g. Sentencing Statistics Guilty Plea v. Trial h. Sentencing Statistics Age of Victim i. Sentencing Statistics Total Length of Supervision C. APPEAL STATISTICS I. Alberta II. Ontario III. Québec IV. Inter-Provincial Comparisons CONCLUSIONS SENTENCING SURVEY CANLII AND SOQUIJ SEARCHES SOURCES CONSULTED

4 1. INTRODUCTION One of the key issues in modern Canadian sentencing policy has been the push by the public for harsher sentencing measures. Noted criminologist Julian Roberts has found that surveys have continually shown that Canadians feel that sentences should be more severe. 1 In addition, almost half the population believes that excessive leniency is the main reason for a perceived increase in violent crime rates. 2 Child sexual violence is one of the areas of criminal law where this call for tougher sentencing is the loudest. It is perceived that longer sentences will act as a better deterrent to offenders and society at large, and will also protect society by separating child sex offenders from the general public. 3 There is also a belief that there is an unwarranted disparity in the sentencing process, that those convicted of minor crimes are sentenced more harshly than those who committed major crimes and that this difference is not justified. 4 For instance, the Badgley Report states: Just as the sexual offences in the criminal law fail to recognize the many different types of child sexual abuse, there is likewise no rational sentencing policy in regard to sexual offences committed against young persons For example, offenders who had committed more serious sexual acts were consistently given proportionately lighter sentences than those who had committed more minor offences. 5 1 Julian V. Roberts, Sentencing Trends and Sentencing Disparity in Julian V. Roberts & David P. Cole eds., Making Sense of Sentencing (Toronto: University of Toronto Press, 1999) 137 at 137 [ Sentencing Trends ]. 2 Ibid. 3 Wendy van Tongeren Harvey & Paulah Edwards Dauns, Sexual Offences Against Children and the Criminal Process, 2d ed. (Markham: Butterworths, 2001) at Roberts, Sentencing Trends, supra note 1 at Committee on Sexual Offences Against Children and Youth, Sexual Offences Against Children (Ottawa: Minister of Supply and Services Canada, 1984) (Chair: R. F. Badgley) at 32 [Badgley Report]. 4

5 Roberts has found that these perceptions are not based in a sound knowledge of sentencing decisions or trends, but rather on a distorted view provided by media coverage of certain high profile decisions. 6 The lack of public knowledge about sentencing and sentencing trends in Canada is due, at least in part, to the lack of comprehensive information about sentences in Canada. 7 The Canadian Sentencing Commission noted in 1987 that there were over 1,000 judges in Canada making sentencing decisions and that they lacked access to comprehensive information about how their colleagues were sentencing offenders. 8 The Commission noted: In the absence of any formal guidance, it would be almost impossible to expect no variation in the severity of sentences from judge to judge. Not only because of the differences in the way an offence was viewed in different communities, but simply because different judges in the absence of national policy and in the absence of knowledge of what was happening elsewhere would simply arrive at different conclusions. 9 While some of these problems have been remedied over time, for example the implementation of the Adult Criminal Court Survey in 1994/95, which provides data on sentencing decisions across the country 10, the perceptions about leniency and disparity persist. Part of the problem remains the lack of accessible information about sentences, for both the public and justice actors. While the Adult Criminal Court 6 Roberts, Sentencing Trends, supra note 1 at Ibid. at Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Ottawa: Minister of Supply and Services Canada, 1986) at Ibid. 10 Roberts, Sentencing Trends, supra note 1 at

6 Survey is providing some statistics on sentencing, and there are some limited studies 11 available, there is still a lack of crucial information that both the public and justice officials need in order to assess decisions. The recording of information such as the aggravating and mitigating factors considered by the judge, or the existence of a criminal record of the accused and information about the victims (for example, the age of the victim is not recorded, nor the sex of the victim, nor the relationship between the offender and the victim) would create a more complete sentencing record. 12 In light of these observations about the lack of information about sentencing, this paper aims to provide more comprehensive information about the sentencing practices and patterns in the area of child sexual violence. Specifically, this paper will focus on the sentences of those in a non-familial relationship to the victim. It is recognized that all sexual violence perpetrated against children, whether by someone related to him/her or not, is equally serious and worthy of discussion. However, given the scope of the Cornwall Public Inquiry, where the focus is on abuse perpetrated by those in non-familial relationships, this narrowing of the issue is appropriate. This data in this paper will examine sentences imposed for child sexual violence perpetrated by non-familial persons imposed in Ontario, Québec and Alberta between 1969 and the present. The criminal law has seen several changes over this time period (see Part 4 below for details of the specific charges and their legislative history), and all 11 For example Canadian Centre for Justice Statistics, Family Violence in Canada: A Statistical Profile 2007 (Ottawa: Statistics Canada, 2007); Canadian Centre for Justice Statistics, Family Violence in Canada: A Statistical Profile 2005 (Ottawa: Statistics Canada, 2005). However, these studies are limited in that they only detail information about incidents reported police, and do not follow cases to their conclusion. 12 Ibid. 6

7 potential charges during this time period will be examined. Both cases of historical abuse (where the victim is an adult at the time of the charge) and contemporaneous abuse (where the victim is still a child at the time of the charge) will be studied. Both trial level and appeal decisions are considered to deine the evolution, if any, of appellate court guidance. The purpose of the data collection is to deine what, if any, sentencing trends either did exist, or continue to exist, in the Canadian jurisprudence based on different factors such as: the Criminal Code section used to charge; the province of the charge; when the offender was charged; the relationship between the offender and the victim. The details of the methods used in the collection and tabulation of this data will be described more fully in Part 5 Methodology below. Before analyzing the data collected in this study and providing observations based upon it, current Canadian statistics on sexual crimes generally and child sexual violence specifically will be detailed to provide some general information on the current state of sentencing in Canada. Then some general sentencing law and theory will be detailed in order to inform the reader of the theory behind Canadian sentencing law, as well as the history of sentencing policy in Canada. Finally, the crimes that this paper will analyze will be set out in detail. Due to some major changes to the Criminal Code 13, tracking the offences that were in place at various points in time has often been very 13 R.S.C. 1985, c. C-46. 7

8 difficult. This section aims to provide a comprehensive list of the relevant child sexual violence crimes in place in Canada since 1969, along with their applicable minimum and maximum sentences, as well as any changes that have been made to them. 8

9 2. STATISTICAL REVIEW Although the exact number of incidents of sexual violence perpetrated against children is unknown, given that the sexual abuse of children is highly underreported 14 and thus impossible to track accurately, the known prevalence of child sexual abuse in Canada has been described as disturbingly common. 15 In 2005, Canadian statistics 16 found that there were 9,877 reported incidents of sexual violence against children, an incidence of 206 per 100,000 people. 17 This rate is considerably higher than the reported incidents of sexual violence against adults for the same year, 7,063, an incidence of 39 per 100,000 people. 18 Of the 9,877 incidents of sexual violence, statistics showed that 43% of these incidents were perpetrated by someone known to the child, other than a family member. 19 Family members were the perpetrators in 34% of incidents, while strangers perpetrated in 11% of cases and the remaining relationships between the perpetrator and victim was unknown. 20 The same data showed that girls were more 14 One study places the rate of unreported sexual assaults (where victims are both children or adults) at 90% of all incidents of sexual violence; Canadian Centre for Justice Statistics, Sex Offenders (1999) 19:3 Juristat at 12. The reasons for not reporting incidents of sexual violence against children are numerous and include: the age/developmental stage of the child (as it makes it difficult to articulate what has happened to them); feelings of powerlessness; dependency on the perpetrator; fear of repercussions; fear of stigmatization; conflicting emotions. See Canada, Department of Justice, Sexual Abuse and Exploitation of Children and Youth: A Fact Sheet from the Department of Justice Canada at 3, online: Department of Justice < 15 Canada, Department of Justice, Sexual Abuse and Exploitation of Children and Youth: A Fact Sheet from the Department of Justice Canada, ibid. at The statistics are measured from a set of 122 police reporting services across Canada that are representative of 71% of the population. See Canadian Centre for Justice Statistics, Family Violence in Canada: A Statistical Profile 2007 (Ottawa: Statistics Canada, 2007) at Ibid. at Ibid. 19 Ibid. at Ibid. Statistics were almost identical to the 2003 data. 9

10 likely to be victimized than boys, whatever their relationship to the perpetrator, with 79% of the 9,877 incidents perpetrated against girls. 21 These rates appear to be consistent with older data from 1997, which showed that 50% of children were sexually violated by a friend/acquaintance, 34% by a family member and 16% by a stranger. 22 The same study from 1997 showed that 82% of child sexual violence victims were girls, while 18% were boys, which indicates that abuse perpetrated on boys may be on the rise. 23 It was noted that in 2003 children made up approximately 21% of the Canadian population, but were the victims of 61% of incidents of sexual violence in the country. 24 This percentage is startlingly high. As a comparison, the same data set reports that children are the victims in 21% of physical assaults, a number more consistent with the overall number of children in the country. Statistics Canada began tracking this specific set of data in In 2003, it was found that the rate of sexual violence against children had increased slightly each year between 1998 and 2002, and then decreased slightly in 2003, for cases of both familial and non-familial abuse. 25 The statistics noted above point to the number of incidents of sexual violence reported to the police. However, the number of cases that progress past the reporting stage, and ultimately to the sentencing stage is significantly smaller. It is estimated that only 2-5% of all reported criminal incidents actually progress to the stage where the 21 Ibid. at Canadian Centre for Justice Statistics, Sex Offenders, supra note 14 at Ibid. at Canadian Centre for Justice Statistics, Family Violence in Canada: A Statistical Profile 2005 (Ottawa: Statistics Canada, 2005) at Ibid. at

11 perpetrator is sentenced. 26 There are many things that can happen between the time an offence is reported to the police to the time that a perpetrator is sentenced. First, not all incidents of crime reported to the police result in a charge laid. While there are no specific statistics tracking the rate at which sexual offences perpetrated against children move through the justice system, the rates for all sexual offences can cited as a general example. In Canada in 2002, approximately 16% of reported sexual violence incidents were declared unfounded by the police. 27 This means that the police investigated the crime, but found that there was no violation of the law. In 2003, it was found that approximately 42% of all sexual assaults reported, and declared founded by police, with both children and adults as victims, resulted in a charge laid against a perpetrator. 28 For other sexual offences (such as sexual interference, anal intercourse etc.), 44% of incidents reported led to a charge. 29 This is known as clearance by charge. This rate is lower than the average clearance by charge rate for other violent offences, which in 2002 was 50%. 30 The Canadian Centre 26 Julian V. Roberts & David P. Cole Introduction to Sentencing and Parole in Julian V. Roberts & David P. Cole eds., Making Sense of Sentencing (Toronto: University of Toronto Press, 1999) 3 at Rebecca Kong et al., Sexual Offences in Canada (2003) 23:6 Juristat at 9, which states: Approximately one-in-six sexual offences reported to the police in 2002 were declared unfounded by the authorities meaning that after an initial investigation took place, police concluded that no violation of the law took place nor was attempted. Overall, 16% of sexual offences were unfounded, and the rate varied by type of offence: 16% of sexual assault level 1 cases, 11% of level 2 sexual assaults, 11% of level 3 sexual assaults, and 15% of other sexual offences. 28 Canadian Centre for Justice Statistics, Canadian Crime Statistics 2003 (Ottawa: Statistics Canada, 2004) at Ibid. 30 Kong et al., Sexual Offences in Canada, supra note 27 at 9. 11

12 for Justice Statistics has noted that the clearance by charge rate for sexual offences has been decreasing since Once a charge is laid, the file then goes to the Crown Attorney s office. The Crown has discretion to decide whether the charge laid by the police should be prosecuted. The standard that the Crown is to apply in making this decision is whether there is a reasonable likelihood of securing a conviction. If not, then the charge is stayed at this stage and does not progress any further. One study of the factors affecting the disposition of sexual assault cases before the court found that after the 1983 reforms of sexual assault law, that the Crown stayed charges in 34% of cases where charges were laid. 32 If the Crown decides to prosecute the case, it proceeds to court. At this stage, the perpetrator may plead guilty to the offence, may be found guilty at trial, be acquitted of the offence or have the charges stayed or withdrawn at the trial stage. In those cases where the perpetrator either pleads guilty or is found guilty at trial, a sentence will be imposed. For example, in 2001/02, the Canadian Centre for Justice Statistics found that there was a finding of guilt in 41% of sexual offence cases that came before the courts, an acquittal in 8% of cases, a stay or withdrawal of the charge in 41% of cases and other findings (such as not criminally responsible, where the perpetrator was not fit to stand trial, was discharged etc.) accounted for 11% of sexual offences before the courts Ibid. 32 Rita Gunn & Rick Linden, Factors Affecting the Disposition of Sexual Assault Cases Before and After a Change in Sexual Assault Laws (1991) 6:1 Canadian Journal of Program Evaluation 71 at Kong et al., Sexual Offences in Canada, supra note 27 at

13 During this same time period, the Canadian Centre for Justice Statistics found that the conviction rate for other violent offences was much higher than that for sexual offences, at 51%, with a 6% acquittal rate, a 39% stay/withdrawal rate and 4% for other dispositions. 34 By passing through all of these stages, it is clear that only a small number of cases in fact reach the stage where a sentence is actually imposed upon an offender. Although the actual number of child sexual abuse cases that reach the sentencing stage is not readily available, it is likely to be even less than the 2-5% number estimated above, given that these crimes are notoriously underreported compared to other crimes, and that even when they are reported, that convictions are harder to obtain when compared to other crimes. 35 Therefore, it must be realized that sentencing is only one small piece in the puzzle of reducing the incidence of child sexual abuse and that changes to sentencing policy with respect to child sexual abuse will only have limited effects on the overall crime rate and will not provide a whole solution to the problem. 36 Other decisions include final decisions of found not criminally responsible, waived in province/territory, and waived out of province/territory. This order also includes any order where a conviction was not recorded, the court s acceptance of a special plea, cases which raise Charter artuments and cases where the accused was found unfit to stand trial. 34 Ibid. 35 It is well known that has been more difficult to obtain convictions in cases of child sexual violence due to factors including the perceived unreliability of the evidence of children. As the Badgley Report points out, the law has regarded the evidence of children with skepticism, but that it is unfounded (Badgley Report, supra note 5 at 32). Some changes to the law have been made in order to better receive the evidence of children, most notably those contained within the 1988 legislative changes of Bill C-15, which removed the need for corroboration of an un-sworn child s testimony and where children were allowed to testify on a promise to tell the truth. 36 Roberts & Cole, Introduction to Sentencing and Parole, supra note 26 at 8. 13

14 Canadian statistics generally have shown a downward trend in the rate of imprisonment for those convicted of all sexual offences (including both child and adult victims). The Canadian Centre for Justice Statistics reports that in the years 1994/95 that 63% of those convicted of a sexual offence were sentenced to a of imprisonment. 37 In 2001/2002 that number dropped to 49%. 38 Part of this drop can be explained by the introduction of conditional sentencing (explained in more detail in Part 2 below) in In the first year of conditional sentence reporting, 1998/99, 9% of those convicted of a sexual offence (including both child and adult victims) received a conditional sentence. 39 That number rose to 17% for the 2001/02 period. 40 Interestingly, the rate of probation imposed on perpetrators of sexual violence also dropped between 1994/95 and 2001/02. In 1994/95, 33% of sexual offenders received a sentence of probation, while in 2001/02 that number had dropped to 27%. 41 While the conviction rate for those accused of sexual violence is lower than those accused of physical violence, it appears that once convicted, those who have committed an act of sexual violence are much more likely to receive a sentence of imprisonment. As seen above, the imprisonment rate for crimes of sexual violence as 63% in 1994/95 and 49% in 2001/02. These rates are much higher than those convicted of crimes of physical violence, where in 1994/95 the incarceration rate was 37% and in 2001/02 37 Kong et al., Sexual Offences in Canada, supra note 27 at Ibid. 39 Ibid. 40 Ibid. 41 Ibid. 14

15 where it was 35%. 42 Probation rates for those convicted of physical violence were much higher than for those convicted of sexual violence, 47% in 1994/95 and 49% in 2001/ Interestingly, conditional sentence rates for crimes of physical violence are very low, starting in 1998/99 at a rate of 2% and in 2001/02 at a rate of 4%. 44 Based on these statistics, then, it appears that those convicted of sexual violence are much more likely to receive a conditional sentence than those convicted of physical violence, however the reasons for such a divergence in conditional sentence rates between the two groups of offenders is unclear. Another study completed in 2005 on child sexual exploitation found that in Canada in 2003/03 that there were 1,792 reported incidents of sexual interference (s. 151), 280 reported incidents of invitation to sexual touching (s. 152), 353 reported incidents of sexual exploitation (s. 153) and 42 reported incidents of anal intercourse (s. 159) perpetrated against children. 45 Of those reported incidents 37.3% of the sexual interference incidents, 40.4% of the invitation to sexual touching, 31.2% of the sexual exploitation and 7.1% of the anal intercourse incidents led to a finding of guilt. 46 Of those found guilty of sexual interference, 49.7% received a custodial sentence, 20.6% received a conditional sentence, 27.7% received a probationary sentence and 2.0% received some other sentence. 47 Of those found guilty of invitation to sexual touching, 42 Ibid. 43 Ibid. 44 Ibid. 45 Canada, Department of Justice, Research and Statistics Division, Child Sexual Exploitation in Canada: Incidence, Sentencing and Recidivism by Jeff Latimer, (2005) 13 JustResearch 28 at Ibid. at Ibid. at 32. Other dispositions include, fines, discharges or suspended sentences. 15

16 57.5% received a custodial sentence, 13.3% received a conditional sentence, 29.2% received a probationary sentence. 48 Of those found guilty of sexual exploitation 45.9% received a custodial sentence, 24.8% received a conditional sentence, 27.5% received a probationary sentence and 1.8% received some other sentence. 49 Finally, of those convicted of anal intercourse 66.7% received a custodial sentence and 33.3% received a sentence of probation. 50 Generally, those who are convicted of sexual offences (all sexual offences, regardless of the victim) and sentenced to s of imprisonment will serve a longer sentence than those convicted of other violent crimes. In 1994/95, the median length of imprisonment for all criminal offences in Canada was 30 days. For the same period, the median length of imprisonment for sexual assault was 240 days; while for other crimes of sexual abuse was 180 days. Common assault reported a median of 30 days, while major assaults resulted in a median of 90 days. 51 In 1999/2000, the median length of imprisonment for all criminal offences remained 30 days, while that for sexual assault rose to 300 days that for other cases of sexual abuse rose to 240 days. Common assault remained the same at a median of 30 days, while major physical assaults decreased to a median of 75 days. 52 In 2002/03, the median sentence of imprisonment for all criminal offences remained at 30 days, while that for both sexual assault and other sexual abuse case rose to 360 days each. Major assault decreased to a median of 60 days and 48 Ibid. 49 Ibid. 50 Ibid. 51 Liisa Pent, Adult Criminal Court Statistics 1999/2000 (2001) 21:2 Juristat at Ibid. 16

17 common assault remained at a median of 30 days. 53 In 2006/07, all of the medians remained the same as they were in 2002/03, except for that of major physical assault, which rose to a median sentence of incarceration of 80 days. 54 Roberts and Grimes noted this upward trend in 2000, stating that there was an increase of 50% in the median length of imprisonment imposed in the category of crimes against the person, and stated that this shift most impacted sexual assault, other crimes of sexual violence and common assault. 55 In 1999 the Canadian Centre for Justice Statistics provided a breakdown of the total prison s of adult sexual offenders (including child and adult victims) in Canada. For the period : 10% of sexual offenders received a sentence of 1 month or less, compared to 33% of other violent offenders; 35% of sexual offenders received a sentence of more than 1 month to 6 months, compared to 43% of other violent offenders; 18% of sexual offenders received a sentence of more than 6 months to 12 months, compared to 9% of other violent offenders; 17% of sexual offenders received a sentence of more than 1 year to less than 2 years, compared to 6% of other violent offenders; and 19% of sexual offenders received a sentence of 2 years or more, compared to 8% of other violent offenders. 56 The trend of longer sentences for those convicted of sexual assault and other offences of sexual abuse is similar where the offender is sentenced to a of 53 Michael Marth, Adult Criminal Court Statistics (2008) 28:5 Juristat at Ibid. 55 Julian V. Roberts & Craig Grimes, Adult Criminal Court Statistics (2000) 20:1 Juristat at Canadian Centre for Justice Statistics, Sex Offenders, supra note 14 at 8. 17

18 probation. For example, the median length of probation for all criminal offences has been a constant 365 days (or one year) since 1994/95 to 2006/ However, the median length of probation orders for those convicted of sexual assault or other sexual abuse were twice as long, at 730 days (or two years). Again, this length has more or less remained consistent from the period of time between 1994/95 and 2006/ The median length of probation for those convicted of common assault during this same period of time was 365 days, while those convicted of a major physical assault were reported as higher, at 540 days in 1994/95, but decreasing to 365 days in 2006/ It seems clear from this data that sexual offenders on the whole, when they are convicted, receive harsher penalties than do other violent offenders. Whether or not these sentences are harsh enough, however, is a constant point of debate, both in legal, criminological and public arenas. Some studies have shown that incarcerating sexual offenders has little deterrent effect, meaning that it does not impact on future criminal behaviour 60, however deterrence is not the only factor to be taken into account when sentencing, as will be demonstrated below. Other approaches have attempted to strike a balance between punishing offenders and also reducing the risk they pose to society through rehabilitative and other supportive means. 61 In addition, these studies do not 57 Pent, Adult Criminal Court Statistics 1999/2000, supra note 51 at 15, Marth, Adult Criminal Court Statistics supra note 53 at Ibid. In 2002/03, the median length of probation for those convicted of sexual assault was recorded as 540 days, however, the next year, it jumped back up to 720 days, and the next year went back to 730 days. 59 Ibid. 60 For example, in a Canadian study of recidivism amongst incarcerated sex offenders, it was found that incarceration has no positive impact on the recidivism rate. See Kevin L. Nunes et al., Incarceration and Recidivism among Sexual Offenders (2007) 31 Law Hum. Behav For example, one way of managing the risk posed by sex offenders is to utilize circles of support, in which groups of trained volunteers surround offenders in the community to assist them with 18

19 show how sexual offenders are sentenced in relationship to the victim. For example, do offenders who offend against children receive higher sentences than those who offend against other adults? reintegration and to support them in their efforts to not re-offend. See Michael G. Petrunik, Managing Unacceptable Risk: Sex Offenders, Community Response and Social Policy in the United States and Canada (2002) 46:4 International Journal of Offender Therapy and Comparative Criminology

20 3. SENTENCING LAW & POLICY The law and theory surrounding sentencing is not simple. In passing a sentence on someone convicted of a criminal offence, society, through a judge, is expressing many different values and attempting to serve many purposes simultaneously. In addition to the general values and purposes that we as a society hope to further in sentencing an offender, individual factors of the crime itself and the offender him/herself must also be taken into account to arrive at a proper sentence. It may be said then, that sentencing is more of an art than a science. Sentencing is not a science. It is the application of value judgments, as to what is fair and what might produce desired results. That means it will always be controversial. 62 With the exception of mandatory minimum sentences, where an offender must be sentenced to at least the minimum period of incarceration, there are no mandated sentences in the Criminal Code that a judge must follow in all cases. For example, it is not the case that in all cases of theft (or any other offence), that offenders are sentenced to 1-year imprisonment. This state of affairs would likely result in unfairness and injustice. There is no such thing as passing the correct sentence in a moral sense or any other sense. More than one alternative may be equally justifiable. If the legislators have mandated that, for a given offence, there is only one predeined punishment, a sentence reflecting that will be legally correct, but is unlikely to be regarded as morally right in all cases. On the contrary, it is liable to be perceived as legislated injustice in some, and perhaps many, individual cases T.W. Ferris, Sentencing: Practical Approaches (Markham: Butterworths, 2005) at Ibid. at 5. 20

21 Instead judges may consider a whole range of sentences for each criminal case. 64 In addition, judges are also reluctant to consider sentences close to the maximum sentence except in the worst cases. Judges must look to the objectives of sentencing, the principles of sentencing, along with the individual facts of each particular case and look to the legislation as well as previous case law to deine the sentence in each case. With the aim of explaining how judges arrive at their sentencing decisions, this section will look at the theory and history behind sentencing for criminal offences in Canada. 64 There have been some attempts made to standardize the sentencing process through the imposition of sentencing starting points, meaning that for certain offences, judges should start with a standard sentence and then either add to it or subtract from it depending on the applicable aggravating and mitigating standards. (Allan Manson, Patrick Healy & Gary Trotter, Sentencing and Penal Policy in Canada: Cases, Materials and Commentary (Toronto: Emond Montgomery Publications Ltd., 2000) at 92). Alberta is one province that engages in this approach with respect to child sexual abuse cases, see R. v. S.(W.B.) (1992), 73 C.C.C. (3d) 530 (Alta. C.A.), where there is a 4 year starting point for the sexual abuse of children in which there is a trust or trust-like relationship. There is some judicial disagreement in other courts about the propriety of such an approach, but it has not been explicitly overturned by the Supreme Court of Canada and continues to be used in Alberta decisions. See e.g. R. v. McDonnell, [1997] 1 S.C.R. 948 where the majority of the court found that there is no legal basis for the judicial creation of offence categories for the purposes of sentencing. 21

22 A. THEORY What are the objectives for sentencing people for their wrongdoing? What are we, as a society, trying to achieve? This question requires some analysis, as when an offender is sentenced through the criminal justice system, she/he is deprived of their liberty, which is a constitutionally protected right. 65 That deprivation of liberty must be in accordance with the principles of fundamental justice and must achieve some purpose that can be both legally and morally justified. Theoretically, there are two philosophical theories of punishment, both of which have a place in our modern sentencing regime. The first is the utilitarian theory of punishment, which justifies punishment through sentencing through the benefits that it achieves by sentencing, the most notable of which is a reduction of future crimes committed by both the offender him/herself (called specific deterrence) and by society at large (general deterrence). 66 The second theory is the retributivist theory of punishment, which essentially stands for the principle that punishment is justified because the offender deserves it due to the commission of the crime and that it repays his/her debt to society. 67 Unlike the utilitarian theory, the retributivist theory does not require that there be any other benefits of the punishment, such as a reduced crime rate in the future. 68 Despite their different goals, aspects of both of these theories, through the use of specific sentencing 65 See Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s See Manson, Healy & Trotter, supra note 64 at Ibid. at Roberts & Cole, Introduction to Sentencing and Parole, supra note 26 at 5. 22

23 objectives, have been integrated into both the historic and current sentencing regimes in Canada. 23

24 B. HISTORY Prior to 1996, with the passage of Bill C-41 69, the objectives to be considered by a judge in the imposition of a sentence were not legislated. Instead their application was left to the discretion of the judge in each case. While it is noted that most judges agreed on what the principles that should be considered in imposing sentence are, their application of the objectives could result in a wide disparity in the sentences imposed. 70 Even today, with the codification of sentencing objectives, judges are still afforded a great deal of discretion in deciding how to weigh them in each particular case. 71 However, the wide judicial discretion permitted in sentencing has been found to be the best system for Canada, one in which there is flexibility to fit the sentence to the particular offender, offence and the needs of the administration of justice. In Canada, it has always been thought that the best mechanism for ensuring this [a fit sentence] is the trained use of judicial discretion. Parliament has rarely prescribed sentences that must be imposed following a finding of guilt Bill C-41, An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, 1 st Sess., 35 th Parl., 1996 (assented to 13 June 1995) S.C. 1995, c Manson, Healy & Trotter, supra note 66 at As noted by Manson, Healy & Trotter, ibid. at 58. Section of the Criminal Code states: (1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence. (2) Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment. 72 Manson, Healy & Trotter, ibid. at

25 The objectives that judges used in making their sentencing decisions were a blend of those from the utilitarian and retributivist theories. 73 They include deterrence, incapacitation, rehabilitation, retribution and denunciation. Each will be canvassed in turn below. There was no established priority amongst the objectives, which allowed for a more flexible framework for judges to emphasize certain objectives in certain cases where the situation warranted Called the amalgam or wise blending of values by Manson, Healy & Trotter, ibid. at Ibid. at

26 I. Deterrence There are two kinds of deterrence, specific deterrence, which aims to deter the actual offender from committing this crime again in the future, and general deterrence, which aims to deter the general public from committing this crime. a. General Deterrence General deterrence is the objective of preventing future crime. The general public is said to be deterred from committing future crimes through the threat of punishment. They see both the consequences from committing a crime, i.e. the sentencing of the offender, and decide that the possibility of a similar punishment is not worth the risk. The idea is to warn other members of society who are contemplating, or who might contemplate, committing a crime of the consequences. The threat of punishment is supposed to make them think twice before offending. The aim is crime prevention and the mechanism is fear of future punishment. 75 While this may be an important goal of sentencing, some criminologists have questioned whether the general public is in fact deterred from the imposition of sentences, especially in respect of more serious crimes. Julian Roberts and David Cole note that one problem is that the sentences imposed are not widely known to the public, and that the information is not readily available to other potential offenders, who cannot therefore be deterred from committing a crime. 76 In addition, while they state that general deterrence may work for low level transgressions such as parking 75 Roberts & Cole, Introduction to Sentencing and Parole, supra note 26 at Ibid. at 6. 26

27 violations, it does not hold for more serious criminal offences, meaning that those who commit more serious offences are less likely to care about the potential consequences. 77 b. Specific Deterrence The objective of specific deterrence focuses on deterring the offender being sentenced from committing a similar crime in the future through the fear of a similar punishment. As noted by Roberts and Cole, specific deterrence is often the goal at play when repeat offenders are sentenced more harshly. Individual deterrence is often invoked to justify the imposition of a harsher penalty on a repeat offender, on the grounds that [the] offender did not learn his lesson the first time. 78 As was the case with general deterrence, criminological studies have found that despite the assumption that harsher sentences lead to more specific deterrence of crime that this is not necessarily the case. [I]t appears that a harsh punishment (imprisonment) is no more effective a deterrent than a milder punishment (probation). 79 It has been found that the deterrent effect is not in the harshness of the punishment, but the certainty of being punished. 80 II. Incapacitation Incapacitation is achieved by removing the offender from society, either through a sentence of incarceration or through other restrictions placed on the offender, such as 77 Ibid. at Ibid. at Ibid. 80 Ibid. at 8. 27

28 probation. This objective is said to promote safety in society by segregating the offender from society at large for a period of time, where s/he will not be free to commit further crimes. Criminological research has found that incapacitation through incarceration is not as effective in preventing crime as the public might intuitively think, given that predicting who will re-offend is extraordinarily difficult. 81 III. Rehabilitation The objective of rehabilitation aims to re-establish the offender in society as a law-abiding citizen. This goal need not be established through a sentence of imprisonment, although there are many programs available to prisoners while in jail. However, a judge cannot direct an offender to undertake rehabilitative programming while in prison. The judge may make recommendations, but they are not binding on the offender while incarcerated. 82 There are also many programs available to offenders outside of the prison system that can help them to rehabilitate. IV. Retribution Retribution, unlike the other objectives noted above, does not aim to change future behaviour, but instead looks at the past behaviour of the offender and provides public condemnation of it through the imposition of the specific sentence. 83 In essence, the goal of retribution is to hold the offender responsible for his/her actions. It also 81 Ibid. at Badgley Report, supra note 5 at Canadian Sentencing Commission, supra note 8 at

29 provides a moral basis for imposing the sentence; that the offender has committed a wrong. V. Denunciation Related to retribution is the objective of denunciation. It is the communication of the public condemnation of the offender s act, a public criticism. This takes place in court through the judicial pronouncement of the sentence and also through publicity of the offender s act and the sentence. Although this effect may in fact be diminished in cases where there are publication bans in place, which prohibit the publication of the offender s name, as well as that of the victim. 29

30 C. Sentencing Reform in 1996 The need for reform in sentencing, particularly the need to codify the underlying objectives of sentencing, was recognized by Parliament 84 and in 1996 the Criminal Code was amended to reflect this need. 85 Various commentators have argued for the codification of sentencing guidelines, stating that without guidelines, sentences were disparate and variable and that, as a result, over time will lose their public legitimacy. 86 The amendment added the following provisions to the Criminal Code: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and 84 Various studies, reports and recommendations were made to Parliament over the years leading up to the 1996 amendments, including the Law Reform Commission of Canada, the Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Ottawa: Minister of Supply and Services, 1987); and the Standing Committee of the House of Commons on Justice, Taking Responsibility: Report of the House of Commons Standing Committee on Justice and Solicitor General on Its Review of Sentencing, Conditional Release, and Related Aspects of Corrections (Ottawa: Minister of Supply and Services, 1988). 85 S.C. 1995, c. 22, as amended. A previous attempt to codify the principles of sentencing was introduced in 1984, Bill C-19, Criminal Law Reform Act, 2 nd Sess. 32 nd Parl , however that legislation died on the order paper. 86 A.N. Doob & J.P. Brodeur, Achieving Accountability in Sentencing in P. Stenning ed., Accountability for Criminal Justice: Selected Essays (Toronto: University of Toronto Presss, 1996) 376 at

31 (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. The argument in favour of a codification of sentencing objectives is that it clarifies once and for all the goals of sentencing to be used by judges in making their decisions. This would eliminate some discretion of judges in decision-making. The potential benefits of a statutory statement of the purpose(s) of sentencing are clear. In the absence of such a statement, judges are free to follow their own individual sentencing philosophies, which can vary greatly from case to case and from judge to judge. 87 However, whether this particular codification of sentencing objectives provided in s. 718 is actually effective is a matter of debate. Some critics state that s. 718 could be interpreted as a mere codification of the objectives that judges have always used in deining a sentence and is therefore not providing any new guidance to judges. 88 The Bill C-41 formulation will not prove of much practical assistance to judges for it fails to inform them of the conditions under which different sentences purposes are appropriate. The likely consequence is that judges will continue to sentence as before and sentencing court practices at the trial court level will not be affected. 89 The objectives themselves in s. 718 are closely related to those that were in common use prior to the codification. Subsection (a) is clearly denunciation, (b) is deterrence, (c) is incapacitation and (d) is rehabilitation. Subsection (f) is a newer 87 Julian V. Roberts & Andrew von Hirsch, Legislating the Purpose and Principles of Sentencing in Julian V. Roberts & David P. Cole eds., Making Sense of Sentencing (Toronto: University of Toronto Press, 1999) at Ferris, supra note 62 at Julian V. Roberts & Andrew von Hirsch, Statutory Sentencing Reform: The Purpose and Principles of Sentencing ( ) 37 Crim. L.Q. 220 at

32 wording of a timeless principle of sentencing, to promote responsibility in offenders for their actions. Subsection (e) focuses on the victims needs and seeks to promote reparations to the victim for harm done through the commission of a criminal act. While the goal of reparation had not previously been discussed as one of the core sentencing objectives, it was a consideration that played a part in countless decisions where judges ordered an offender to provide restitution to the victim for harm done. Except for the most recent amendment, which pronounces that in cases of the abuse of children under 18 that the objectives of deterrence and denunciation are to be paramount 90 (which will be discussed in further detail below), Parliament does not provide any guidance as to the hierarchy of purposes, only that sanctions imposed through sentencing must have the goals of respect for the law and protection of society at their core and must follow at least one or more of the listed objectives. Nor does it provide any guidance to judges as to when certain objectives should be preferred over others. 91 This pronouncement leaves room for judicial discretion in choosing which of the listed principles to emphasize in any given decision and adheres to the idea that judges hearing the cases are in the best position to deine which principles need to be emphasized in each case due to their familiarity with the facts, which, as discussed above was essentially the state of affairs prior to the codification. 90 Criminal Code, s , enacted S.C. 2005, c. 32, s Roberts & von Hirsch, Legislating the Purpose and Principles of Sentencing, supra note 87 at 53, Roberts & von Hirsch, Statutory Sentencing Reform: The Purpose and Principles of Sentencing, supra note 89 at