R. v. L.A, 2023 SKCA 136, DECEMBER 29, 2023.
FACTS: The accused was convicted of a number of sexual offences against his sister and two of his daughters when they children. He was sentenced to a period of ten years of imprisonment. In addition, a lifetime SOIRA order and a lifetime section 161 Criminal Code order were imposed.
At his sentence hearing, the accused’s spouse addressed the judge. She did not want the accused to be sentenced to a period of incarceration. In addition, defence counsel sought to have one of the victims (E) testify. E, one of the accused’s daughters, who was eighteen at the time of the sentence hearing, was going to ask for leniency. The sentencing judge declined to hear this evidence.
The accused appealed from the sentence imposed. He argued that the sentencing judge erred failing to give consider his spouse’s comments and failing to allow E to testify, contrary to the Canadian Victims Bill of Rights.
HELD: The appealwas allowed, in part. The sentence imposed and the section 161 order were affirmed. The SOIRA order was reduced to twenty years. The condition in the section 161 order “that does not allow the appellant to have any contact with his children will be changed from reading, ‘having any contact – including communication by any means – with a person who is under the age of 16 years’ to ‘having any in‑person contact with a person who is under the age of 16 years’” (see paragraph 191).
Participation by the Victims:
The Court of Appeal held that the Canadian Victims Bill of Rights defers “to the process that s. 722 of the Criminal Code establishes” (at paragraph 63). The Court of Appeal concluded “the Canadian Victims Bill and s. 722 of the Criminal Code indicate Parliament’s strong view that victims have rights in the criminal justice system, but it is the latter Act that determines the ambit of those rights. Both Acts confer rights on victims, but neither Act gives a victim the right to influence sentence length by expressing a view about whether the offender should be punished harshly or leniently. The victim has the right to describe the harm that they have suffered by the criminal act perpetrated against them and to do so in the manner delineated by the Criminal Code” (at paragraph 69).
Pleas for Leniency by Victims:
The Court of Appeal indicated that the “overall tenor of s. 722 and Form 34.2 confirms that a sentencing judge has the discretion to determine what is received, but the focus is to be on the offence and the harm caused by it” (at paragraph 71). The Court of Appeal concluded that the Criminal Code “does not establish a principle of sentencing that requires a sentencing judge to take into account pleas for leniency made in relation to sentencing for sexual offences against children. Indeed, a plea for a reduced sentence is contrary to s. 718.01 and s. 718.2(a), which stress denunciation and deterrence and the aggravating factors deemed to be associated with such offences” (at paragraph 77).
