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


In R. v. Cunningham, 2023 ONCA 36, January 20, 2023, the Ontario Court of Appeal indicated that in “a domestic context, the objectives of denunciation and deterrence gain added significance and require heightened attention to the moral blameworthiness of the offender. The sentence must reflect the individual harm to the victim and the court’s response to the heinous effects of domestic violence…   With respect to victims, courts have recognized that victims of intimate partner violence are in a position of trust and vulnerability with the perpetrator” (at paragraphs 27 and 27).

The Court of Appeal noted that there has been “an increase in society’s awareness” the “evil” created by intimate partner violence and that “the intention of Parliament clearly supports enhanced penalties” for the perpetrators of such offences (at paragraphs 48 to 52):

The last two decades have seen an increase in society’s awareness of the prevalence of domestic violence and the evils it creates. Since Boucher was decided, Parliament has responded to this societal problem with legislation both within and outside the criminal justice system.

Within the criminal justice system, Parliament introduced Bill C-75 in 2019. A key aspect of the Bill was a focus on intimate partner violence, which included several reforms targeting domestic violence. The most significant changes were those made to sentencing, including the expansion of s. 718.2(a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, directing that the commission of an offence involving abuse of an intimate partner must be considered an aggravating factor on sentencing. It is noteworthy that “intimate partner” includes current or former spouses, common law partners and dating partners.

Parliament also enacted s. 718.3(8) of the Code, which provides discretion to sentencing judges to impose a term of imprisonment higher than the maximum when the offence is committed in the context of an intimate partnership.

Parliament has also acted in the civil context. The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), for instance, has been amended to address “family violence” in the determination of parenting plans: see ss. 16(3)(j) and 16(4).

Thus, the intention of Parliament clearly supports enhanced penalties for perpetrators of domestic violence and denunciation and deterrence as the primary sentencing objectives. It also supports changes in sentencing ranges to reflect societal awareness and knowledge of the damage to society, and well as victims, caused by domestic violence.