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Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

SENTENCING FOR INDECENT ASSAULT-FORMER SECTION 156 OF THE CRIMINAL CODE-WHAT PRINCIPLES OF SENTENCING APPLY TO “DATED” SEXUAL OFFENCES?

In R. v. R.O., 2023 BCCA 65, February 10, 2023, the accused was convicted of the offence of indecent assault, contrary to the former section 156 of the Criminal Code.  The British Columbia Court of Appeal noted that the offence occurred “between 1974 and 1977.  M.L. was between seven and 11 years of age during this period. R.O. was in his early 20s. The offence came to light more than 40 years after the fact” (at paragraph 1).  

The trial judge imposed a period of four years of imprisonment. The accused appealed from the sentence imposed, arguing that “the sentencing judge erred in his parity analysis; that R.O. should have been sentenced in the light of 1970s attitudes and circumstances regarding sexual offences against children, and that his sentence should not reflect today’s “upward shift” in sentencing severity largely resulting from the Supreme Court of Canada’s decision in R. v. Friesen, 2020 SCC 9”.

The appeal was dismissed.  The Court of Appeal indicated that “Friesen can be seen as the Court’s adoption of the principle that in historical cases, proportionality demands recognizing the increased gravity with which today’s society understands sexual offences against children. In light of this, it is appropriate to conduct a parity analysis with regard to contemporary case law, bearing in mind not to exceed the maximum sentence in force at the time of the offence. Prior precedents from previous eras that do not reflect this deepened understanding should not be determinative or seen as ‘imposing a cap on sentences’” (at paragraph 49).

The Court of Appeal indicated that the maximum punishment at the time of the offence is “the ceiling”, but that the “current sentencing law on sexual offences against children” applies: (at paragraphs 53 to 55):

The judge did not err in the parity analysis by applying current sentencing law on sexual offences against children. The cases cited by R.O. from the 1970s and 1980s are of no assistance to him as they do not reflect the range of sentences that accord with society’s understanding today of the gravity of the offences he committed.

I note that, by their very nature, cases of historical sexual offences against children often involve an adult coming forward about abuse they suffered as a child that was not disclosed at the time of the offences. This is likely due, in part, to the moral, social and legal landscape at the time, which silenced or failed to support survivors of sexual violence in a way that our society is striving to change today.

It would be contrary to justice and to “society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children and the far-reaching and on-going harm that it causes” to use the moral, social, and legal standards at the time of the offence uninformed by these considerations at the time of sentencing.