The SCC decision specified factors to consider in determining fit sentences
The Alberta Court of Queen’s Bench has applied the factors set out by the Supreme Court of Canada in a 2020 landmark case to determine the fit sentence for those convicted for sexual crimes against children.
In R v. Sheppard, 2021 ABQB 705, the parties asked the court to determine the proper sentence to be imposed on the accused, a semi-retired teacher, after the jury found him guilty of sexual interference, invitation to sexual touching and sexual assault against a minor victim. The victim was a 13-year-old student of the accused when the offences occurred in 1993 and 1994.
The Crown proposed that the accused should serve a sentence of six to eight years’ imprisonment for the offences of sexual interference and invitation to sexual touching. The accused argued he should only serve a sentence of two years’ imprisonment followed by three years of probation. Regarding the conviction for sexual assault, the court agreed with the Crown’s contention that it should be stayed pursuant to the Kienapple principle.
To resolve the matter, the court relied on the non-exhaustive list of factors pronounced by the Supreme Court in R v. Friesen, 2020 SCC 9. The factors listed in Friesen and considered by the court in ascertaining the appropriate sentence for the accused were the following:
- Likelihood to reoffend;
- Abuse of a position of trust or authority;
- Duration and frequency;
- Age of the victim;
- Degree of physical interference;
- Victim participation.
The court could not conclude whether the accused was a high risk to re-offend given the limited clinical nature of his psychosexual assessment. His assessment report showed no explorations of the current legal difficulties, teaching history and contact with children and adolescents of the accused.
In affirming that the accused abused a position of trust, the court stressed that a teacher-student relationship connotes a closer relationship and requires a higher degree of trust, which could cause a student to suffer more harm from sexual violence. The fact that the victim was living at the boarding school amplified the potential damage that the accused should have foreseen since the victim was under supervision of the teaching staff at all times, the court explained.
The duration and frequency factor, the court noted, pertained to the sexual violence committed against children on multiple occasions and for a longer period. The court determined that there were approximately 10 instances of sexual violence committed by the accused while the victim was in grade seven.
The court took the victim’s age into consideration. While no longer a young child, the court still regarded the fact that the victim was an adolescent child when the offences occurred.
While the degree of physical interference is a recognized aggravating factor, the court held that the type of sexual violence involved in this case should not define the sentencing range. The wrongfulness of sexual violence even in cases where the degree of physical interference was less pronounced must still be recognized, the court said.
Whether the victim participated in the commission of the sexual offences, the court ruled that a child’s participation is neither a mitigating factor nor should it be a legally relevant consideration at sentencing.
After considering numerous principles of sentencing, including those set out in Friesen, the court ordered the accused to serve, concurrently, a sentence of six years’ imprisonment for sexual interference and a sentence of 6 years’ imprisonment for invitation to sexual touching.