Canadian Criminal Sentencing/Offences/Sexual Assault

Legislation Sexual assault 271. Everyone who commits a sexual assault is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of one year and a maximum punishment of 14 years detention; or (b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding 18 months and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of 6 months and a maximum punishment of 2 years less a day. R.S., 1985, c. C-46, s. 271; R.S., 1985, c. 19 (3rd Supp.), s. 10; 1994, c. 44, s. 19; 2012, c. 1, s. 25. CCC Application For general principles on sentence for sexual offences, see Sexual Offences Principles In Saskatchewan, major sexual assaults usually begin at 3 years incarceration.R v. Jackson 1993 CanLII 4414 (SK C.A.), (1994), 87 C.C.C.(3d) 56 R. v. Bird, (1993), 105 Sask.R. 161 and R. v. Cappo, (1994), 116 Sask. R. 1 Sexual assault involving full intercourse of a minor by an adult in a position of trust is usually in the range of 3 to 7 years.R. v. R.H., [2003] N.J. No. 336 (C.A.) R. v. Vokey, 2000 NLCA 14 at 19 R. v. Freake, 2012 NLCA 10 at 25 In Alberta, the starting point for a major sexual assault upon a minor by a person in a position of trust is 4 years.R. v. B.L., 2011 ABCA 375 at 7 R. v. S. (W.B.); Powderface, 1992 CanLII 2761 (AB CA) In Manitoba, major sexual assaults committed upon teenagers by person in a position of trust will start at 4 to 5 years. R. v. D. (M.F.) [1991] M.J. No. 479 (MBCA) In Ontario, cases of sexual assault involving forced intercourse with a spouse or former spouse, sentences generally range from 21 months to four yearsR. v. Smith, 2011 ONCA 564 at 87 R. v. R.(B.S.) (2006), 81 O.R. (3d) 641 (C.A.), 2006 CanLII 29082 (ON CA) R. v. Jackson, 2010 ONSC 3910 R. v. M.(B.), 2008 ONCA 645 R. v. Nolan, 2009 ONCA 727 R. v. Toor, 2011 ONCA 114 A sexual assault is inherently violent, having an impact on the emotional and phychological well-being of the victims. R. v. Stuckless 1998 CanLII 7143 (ONCA) at p.334 It is only in the exceptional or rare cases that a sexual assault on children involving a breach of trust should warrant a conditional sentence.R. v. MacNaughton [1997] O.J. No. 4102 (C.A.), 1997 CanLII 960 (ON CA) at para 7 ("In our view it should only be in rare cases that a conditional sentence be imposed in cases of breach of trust involving the sexual touching of children by adults.") 2 Factors Aggravating Factors Factors that courts can be aggravating include:see R. v. Atkins 1988 CanLII 201 (NL CA), (1988), 69 Nfld. & P.E.I.R. 99 - supports some of the factors listed here predatory sexual behaviour forcible confinement age of the victim and knowledge of true age degree of vulnerability of victim (inarticulate, easily manipulated, disabled) relationship of trust or offender was in position of authority degree of invasion of sexual integrity degree of violence or force used repeated acts of violence whether a weapon was involved manner of interference (attempted acts, kissing, touching outside of clothes, touching inside of clothes, digital penetration, oral sex, full intercourse) whether there was penetration (digital or penile) / if so, whether there was risk of STDs impact on the victim, family and offender public abhorrence to the offence attitude of the offender biological or psychological factors likelihood of rehabilitation likelihood of reoffence Mitigating Factors Age of offender guilty plea (early or late, saved resources) prior record (related or unrelated) Voluntariness of a child victim cannot be used as a mitigating factor. R. v. Hann, (1992), 75 C.C.C. (3d) 355 (N.L.C.A.) c.f. R v Allen (1989), 77 Nfld. & P.E.I.R. 138 (NLCA) Rather, the existence of consent can be used as an absence of a aggravating factor.R v Revet 2010 SKCA 71 2 Ancillary Orders Section 109 weapons prohibition (Mandatory) DNA sampling (s. 487.051) Section 161 Order (if involving person under age 16) Section 743.21 no contact order while in custody Recommended Probationary Terms No contact with victim No contact with persons under age of 16 (if facts involve victim under the age of 16) Treatment/Counselling No alcohol or drugs (if facts involve them) Sexual Assault