Ever so often, the Canadian Supreme Court delivers a major sentencing judgment addressing policies and principles that are also recognised and applied in other jurisdictions. As such they are of great comparative interest, and especially perhaps in Ireland because of certain constitutional and systemic features the two countries have in common. Four of those features are worthy of note. First, Canada, like Ireland (for now at least), is a non-guideline jurisdiction. Most Canadian provinces have judicially-developed starting points or sentence ranges for certain offences, as do we, but there are no formal guidelines like those in England and Wales or in parts of the United States. Secondly, proportionality is the overarching distributive sentencing principle in both jurisdictions. In Canada, that principle is now enshrined in the Criminal Code (s. 718.1) whereas here it has been judicially developed, as it originally was in Canada. Thirdly, both countries have written constitutions, providing for judicial review of legislation and affording strong protection to personal rights and procedural fairness. In both jurisdictions, legislation may be struck down if found to be in conflict with the Constitution (which, in Canada, for this purpose is the Charter of Rights and Freedoms adopted in 1982). See R v Nur  1 S.C.R. 773 (Canada) and Ellis v Minister for Justice  IESC 30 (Ireland). The legislatures in both countries are therefore subject to certain constraints in terms of the punishments they can specify for offences and in enacting more general sentencing rules. Fourthly, both countries share a broadly similar sentencing culture, accepting that “culture”, when used in this sense, can be something of a contested concept. Canada, like Ireland, remains committed to an essentially discretionary sentencing system or, more precisely, a system of principled discretion. Further, both countries, by international standards and certainly when compared with the United States, can fairly be said to adhere to a moderate penalty system. One point of difference is that Canada has a much higher number of minimum sentences than we do, though many of them are quite short and the Canadian Supreme Court has been willing to strike down some of them on constitutional grounds.
Major Canadian Supreme Court sentencing judgments from the fairly recent past include R v Nasogaluak  1 S.C.R. 206 (serious police misconduct at the time of arrest a mitigating factor at sentencing); R v Lacasse  3 S.C.R. 1089 (circumstances in which an appeal court should interfere with sentence, and consideration of local prevalence of offence); R v Nur  1 S.C.R. 773 (striking down a mandatory minimum sentence for firearms offences); R v Suter  2 S.C.R. 496 (punishment beating of defendant and mistake of law as mitigating factors). Now, in R v Friesen 2020 SCC 9 (April 2, 2020), the Court has dealt at great length with the sentencing of child sexual abuse offences.
Friesen (F.) met a woman (we shall call her Ms A) through a dating website. One evening in 2016, they went back to her home which she shared with her four-year-old daughter (B) and her one-year-old son. There they had consensual sexual intercourse after which F told Ms A to bring B into the bedroom so that they could engage in sexual acts with her. This was done although Ms A audio recorded the conversation on her mobile phone. B was understandably terrified at the sexual acts to which she subjected by F and started to scream. Fortunately, a friend of Ms A’s who was babysitting was also staying in the house and, on hearing B’s screams, she came and rescued B from the room. F wanted Ms A to bring B back to the room and threatened her that, unless she did so, he would tell her friend, the babysitter, that Ms A had sexually abused her one-year-old son. This formed the basis of a separate extortion charge to which F pleaded guilty. He also pleaded guilty to sexual interference with a child and it is the sentence for the latter offence that is the subject of the Supreme Court judgment. In the Provincial Court of Manitoba the trial judge imposed a sentence of six years’ imprisonment for the sexual interference offence and a concurrent six-year sentence for the attempted extortion. The Manitoba Court of Appeal reduced these sentences to four-and-a-half years and 18 months respectively, to run concurrently. Following a prosecution appeal, the Canadian Supreme Court restored the six-year sentence imposed by the trial judge for the sex offence.
The joint judgment was delivered by Wagner C.J. and Rowe J. with the remaining seven judges concurring. Effectively, therefore, it was the unanimous judgment of a nine-judge court and, as such, holds considerable authority. Moreover, it is a lengthy and detailed judgment running to 183 paragraphs and over 100 pages of typescript. Most of it is devoted to a close analysis of the nature of child sexual abuse, the harm it causes and the principles according to which it should be sentenced. The Court did not establish any general sentencing guidelines in the form of starting points or ranges. It usually prefers to leave that to the provincial appeal courts, rather than lay down guidelines itself. As might be expected from the length of the judgment, there is a great deal in it and what follows provides nothing more than a brief and incomplete summary.
In Canada, criminal law may be created only by the federal parliament, and most criminal offences are contained in the Criminal Code. However, the criminal law is administered in the individual provinces each of which has its own court system. Over the years, several provincial appeal courts have delivered judgments indicating appropriate starting points for the sentencing of particular offences. Under this system, an appeal court identifies the appropriate sentence for a typical case; this is a starting point to which adjustments may be made in light of the particular circumstances of actual cases. The practice may be traced back to R v Sandercock 1985 ABCA 218 (CanLII), a judgment of the Alberta Court of Appeal dealing with sexual assault. There the Court said:
“The sentencing process now adopted by this Court is to state typical categories with precision, and to acknowledge at the same time that each actual case presents differences from the archetypical case. These differences might mitigate or aggravate. Nevertheless, the idea of a typical case affords a starting point for sentencing because one can state a precise sentence for that precise category. An actual sentence in a real case will vary upwards or downwards from that depending upon the balance of the factors presented in the actual case.”
In Sandercock itself which, it must be recalled, was decided 35 years ago, the Court identified three years’ imprisonment as the starting point for major sexual assault. The staring point approach has strong supporters as well as fierce critics, the latter variously claiming that it interferes with judicial discretion and that it creates artificial categories of offences in a way that Parliament did not intend. However, the approach was strongly reaffirmed by the Alberta Court of Appeal in R v Arcand 2010 ABCA 363 (CanLII). Some provincial appeal courts have identified sentence ranges rather than starting points. That, of course, is the approach favoured here in Ireland in the line of appeal court judgments from People (DPP) v Ryan  2 ILRM 98 onwards. The Canadian Supreme Court has so far tolerated starting point approaches except that it has firmly held, in a series of cases starting with R v McDonnell  1 S.C.R. 948, that failure on the part of a trial judge to place a particular offence within a judicially created category could never, of itself, amount to an error that would justify an appeal court interfering with the sentence which might still be “fit” in the circumstances.
The reason I mention all of this in the present context is that in Friesen some interveners, notably the Legal Aid Society of Alberta and the Criminal Trial Lawyers Association, seem to have launched an all-out attack on the starting point system. Having noted this, the Supreme Court said (): “While we have determined that this case does not provide an appropriate opportunity to assess the merits of these concerns, they raise an issue of importance that should be resolved in an appropriate case.” This might be seen as a rather ominous statement, especially in light of the policy of deference on which the Supreme Court has strongly and repeatedly insisted over many years. A trial judge’s sentencing decision should be respected by an appeal court unless the sentence is demonstrably unfit or is based on an error of principle (which may include an error of law) that has had an impact on the sentence. A “harmless error”, to use an American expression, will not justify appellate intervention. This was stressed in R v Lacasse  3 S.C.R. 1089 and again, in Friesen. In truth, Irish and Canadian law are largely the same in this respect, save that we don’t use the language of deference quite as much. We must therefore wait and see what the present Canadian Supreme Court has to say about starting point sentencing when the matter eventually comes up for consideration, and that may happen before too long. However, the Court will probably (or should) be alert to the possibility that if it condemns the whole idea of starting point sentencing, Parliament may respond by introducing formal guidelines that would place even more constraints on judicial discretion although, to complicate matters further, those too might be subject to constitutional challenge. Meanwhile, as noted below, the Court in Friesen expressly disapproved of the content of some provincial sentencing guidelines for child sexual abuse.
For anyone wanting to read up on Canadian criminal law and sentencing, Kent Roach’s Criminal Law, 7th ed. (Irwin Law, 2018) is fairly concise (about 600 pages) but tremendously good. On sentencing, there is a great casebook which is quite up to date: Manson, Healy, Trotter, Roberts and Ives, Sentencing and Penal Policy in Canada: Cases, Materials, and Commentary 3rd ed. (Emond Montgomery Publications, Toronto, 2016). Allan Manson’s The Law of Sentencing (Irwin Law, 2001) may be almost 20 years old but it has deservedly become something of a classic for its critical and perceptive discussion of general sentencing principles. It is often cited by the Supreme Court (as indeed it was in Friesen). On starting point sentencing (and for a strong defence thereof), see Paul Moreau, “In defence of starting point sentencing” (2016) 63 Criminal Law Quarterly 345.
Sentencing child sexual abuse
The offence to which F. pleaded guilty was sexual interference with a child which, under s. 151 of the Criminal Code, carries a maximum sentence of 14 years’ imprisonment following conviction on indictment. However, the Supreme Court made clear that its general observations were equally applicable to related offences such as invitation to sexual touching, incest, sexual assault, child luring and sexual exploitation. (Incidentally, our offence of invitation to sexual touching under s. 4 of the Criminal Law (Sexual Offences) Act 2017 seems to be based directly on s. 152 of the Canadian Criminal Code).
In Friesen, the Supreme Court begins with a lengthy account of the harm caused by child sexual abuse, including forms of abuse that are facilitated by new technologies (-). It recognises that females are much more likely to be victims of such abuse but also acknowledges that it may have a particularly detrimental impact on children of indigenous communities, children in care, children with disabilities and LGBT2Q+ youth. Child sexual abuse can have a ripple effect by damaging children in their social relationships and by destroying the trust of parents and caregivers in family, friends and social institutions. The Court also placed some emphasis on the inherent wrongfulness of child sexual abuse as a violation of the child’s right to bodily integrity which, as it had previously said in R v Ewanchuk  1 S.C.R. 330, “lies at the core of human dignity and autonomy.” When assessing harm in cases where the victims are still children, sentencing courts should consider not only the immediate or observable harm but also the reasonably foreseeable potential harm that victims may experience well into adulthood. In this connection also the Court stressed the importance of taking account of any increases in maximum sentences introduced by legislation.
The Court did, of course, acknowledge that an offender’s culpability must also be considered and it accepted, in particular, that a mental disability imposing serious cognitive constraints is a mitigating factor. At the same time, it expressly approved Parliament’s decision, as expressed in the Criminal Code, to prioritise denunciation and deterrence in sentencing child sexual abuse offences.
The Court expressed serious concern about the content of guidelines, in the form of sentence ranges or starting points, adopted by some provincial appeal courts, which provide that the upper limit may be exceeded only in exceptional circumstances. It said () that it is “inappropriate to artificially constrain sentencing judges’ ability to impose a proportionate sentence in this manner.” It went even further, at , by directing provincial appellate courts to revise and rationalise sentence ranges and starting points where they treat sexual violence against children and sexual violence against adults similarly. Sexual violence against children is generally more serious. This may be a foretaste of what is to come when the Court gets an opportunity to deal more fully and directly with the legitimacy of sentence starting points and ranges.
Having said all of this, the Court then set out the following “significant factors” that should determine a fit sentence for a child sexual abuse offence:
(a) likelihood of reoffending;
(b) abuse of a position of trust or authority;
(c) duration and frequency of offending (“Each further instance of sexual violence traumatizes the child victim anew and increases the likelihood that the risks of long-term harm will materialize” ().
(d) the age of the victim
(e) the degree of physical interference. However, in this regard, the Court cautioned against attributing too much significance to the form which the abuse took, and in particular against assuming that non-penetrative sexual acts merit less punishment. Courts “should not assume that there is any clear correlation between the type of physical act and the harm to the victim” (). All kinds of physical acts can cause emotional and psychological harm to child victims. Still, increases in the degree of physical interference increases the wrongfulness of the sexual violence ().
(f) “victim participation.” The Court went to great pains to stress that it is an error of law to treat “de facto” consent as a mitigating factor. It said: “Adults, not children, are responsible for preventing sexual activity between children and adults.” Granted, the Court was here assuming that the offence involved abuse of a child by an adult, and in Canada the age of consent is 16 years. Although it did not say so, it may have accepted that consent could be a relevant factor when dealing with sexual activity between young persons of the same age, assuming of course, that there was actual consent.
Finally, the Court said that co-ordinated sexual assault, meaning an assault which, as in this case, involved a number of participants, was all the more serious for that reason.
The Supreme Court found that it was the Manitoba Court of Appeal that fell into error and not the trial judge. In fact, it didn’t have a good word to say about the Court of Appeal judgment, but it expressed strong support for the trial judge’s approach to the case. As noted, it restored the sentence he had imposed . In this respect, the judgment is reminiscent of the majority judgment in R v Lacasse  3 S.C.R. 1089 which was strongly critical of the Quebec Court of Appeal on that occasion. However, it must be said that the dissenting judgment in Lacasse was far more convincing on the circumstances in which and the conditions under which a court should take the local prevalence of an offence into account at sentencing.
Child sexual abuse is, unfortunately, a universal phenomenon. although it is only in fairly recent times that it has begun to be prosecuted with any degree of frequency. All actors within the criminal justice system, including the courts, have had to embark on a fairly steep learning curve in order to appreciate its prevalence, the circumstances in which it occurs and, above all else, the harm (both short-term and long-term) it causes to victims. The judgment in Friesen will doubtless be of great value to courts and sentencing bodies elsewhere in devising principles and guidelines for sentencing child sexual abuse.
Parts of the Friesen judgment might make one reflect on the production of knowledge, if that does not sound a bit too “Foucault.” For example, in setting out the harm caused by child sexual abuse, the Court relied mainly on dicta from earlier judgments of its own or of other courts. For instance at , the Court says:
“A number of this Court’s decisions provide insight into these forms of harm. In R v L. (D.O.)  4 S.C.R. 419, L’Heureux-Dube J. emphasised the emotional trauma that the nine-year old complainant experienced from sexual violence (pp. 439-442). Similarly, in McDonnell, McLachlin J. (as she then was) stressed the emotional harm of “the violence of the child victim’s integrity and sense of self-worth and control over her body” that the child victim experienced as a result of being sexually assaulted while sleeping (para. 111). The likely result of the sexual assault would be “shame, embarrassment, unresolved anger, a reduced ability to trust others and fear that… people could and would abuse her and her body” (para. 113).”
Nobody would question the validity of what is said in that passage. And L’Heureux-Dube J. and McLachlin C.J. (as she later became) are both very fine jurists indeed. But the question is whether purely judicial decisions and dicta are the best source of authority for matters that are essentially empirical in nature. (Admittedly, L’Heureux-Dube J. did refer to some reports in the judgment that is cited in Friesen). One might contrast this approach with that of the majority of the United States Supreme Court in the line of cases beginning with Roper v Simmons 543 U.S. 551 (2005) on the reduced culpability of child offenders. There, extensive use was made of social science (and especially psychological) research. The Court was, to be sure, criticised by some for the particular research on which it drew (see Deborah W. Denno, “The scientific shortcomings of Roper v Simmons (2006) 3 Ohio St. Crim. L.J. 379), but I would still suggest that the American court was right to make use of such research rather than rely solely on judicial precedents.