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


R. c. X, 2022 QCCA 266 (Que. CA), February 22, 2022, at paragraphs 17, 18, and 22 (translation):

I find that the sentencing judge for such offences must fully consider the contemporary understanding of sexual violence against children, including the potential or actual harm to the victim, without needing to [TRANSLATION] “contextualize” or otherwise reduce the sentence imposed for the sole reason that the same offence may have been drafted differently at the time it was committed, or because the maximum sentence then set out in the Criminal Code may have been less than the maximum sentence set out at the time of sentencing. Any mitigation of the sentence based on the fact that the offence, at the time the act was committed, may not have been considered either by society or by Parliament as being as serious as it is now considered, must be treated as a minimization of its actual harmfulness, as it is now understood, and the sentence thus imposed is then subject to review by the Court since it is contrary to the Supreme Court’s guidance:

In particular, taking the harmfulness of these offences into account ensures that the sentence fully reflects the “life-altering consequences” that can and often do flow from the sexual violence Courts should also weigh these harms in a manner that reflects society’s deepening and evolving understanding of their severity.

In this case, the offence dates back 40 years, to a time when the acts were qualified as indecent assault rather than sexual assault and were punishable by a maximum sentence of five years’ imprisonment. Despite this, following the case law, the judge should have taken into account the contemporary understanding of the harmfulness of the acts committed without reserve arising from the fact that they likely would have been treated differently had the sentence been rendered at the time they were committed. The sentence should therefore have reflected this contemporary understanding.

Thus, the principles and purposes of sentencing that the judge must apply will always be those in force at the time of sentencing, but their application cannot lead to a harsher sentence than the maximum sentence set out at the time of the commission of the offence or at the time of sentencing.  Section 11(i) of the Charter does not guarantee the offender the right to the same sentence he would have received had the sentencing hearing taken place at the time of the commission of the offence. Section 11(i) solely entitles him not to receive a harsher sentence than the maximum sentence applicable at the time of the commission of the offence.