Sentencing for Sexual Offences Involving Youth - Breanna Sheppard

Sentencing for sexual offences is a complicated area and not just because of the factors considered in the sentencing of sexual offences, the application of R v Kienapple (“Kienapple”) for included offences, and the ancillary orders of which there are many. The sentencing ranges are further complicated by the application of sentencing minimums that often are both legislated and have higher ranges dictated by the various provincial appellate courts.

The application of Kienapple is an important consideration for sentencing when determining the sentencing ranges because of the mandatory minimums for convictions that have been legislated as well as the typical sentence issued in previous decisions. The rule in Kienapple is triggered where a person is convicted of two offences which have both a factual and a legal nexus and is summed up generally as a rule against multiple convictions for included offences. Often, the Kienapple principle will arise in cases where the accused is prosecuted for both sexual assault and sexual interference that arise out of the same fact scenario. In those instances, the sexual assault has a conditional stay entered, and the conviction is maintained on the sexual interference as it has a minimum penalty while sexual assault did not and it is considered to be more serious. However, there are cases where there is an additional charge, invitation to sexual touching. Since there can be a conviction for invitation to sexual touching without physical contact between the accused and the complainant, there may be circumstances where one offence is proven but the other is not.

As for whether there is a legal nexus between two offences, the Court in R v Prince held that the question to ask is whether there is an additional or distinct element in the second offence that manifests a legislative intent to increase the punishment where both offences are proven. While invitation to sexual touching captures sexual conduct that may not be caught by sexual interference, both offences target the same wrong -- sexual acts with children. By enacting more than one offence, Parliament broadened the scope of conduct that is criminalized but did not intend to add extra punishment just because the conduct in question could result in convictions for both offences.

The Kienapple principle and the number of convictions also has additional, important implications for Sex Offender Information Registration Act orders and for the duration of such orders as well as for the eligibility for termination of the order.

But, more importantly, the charges for sexual offences can attract a variety of mandatory minimums which may or may not be permitted to be served concurrently. Under section 718.3(7) of the Code, where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where one of the sexual offences against that child is an offence relating to child pornography under section 163.1 or if each of the sexual offences against a child, other than a child pornography offence, related to a different child.

The offences under section 151 (sexual interference), section 152 (invitation to sexual touching), and section 153 (sexual exploitation) all have a mandatory minimum penalty of 1 year of incarceration when prosecuted by indictment and 90 days incarceration when prosecuted by summary conviction. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available. When an accused faces charges on these counts, the custodial sentence ordered can quickly start to add up. While sexual offences are heinous and the harm to the complainant often is significant, regardless of the level of intrusion on their bodily autonomy, there are very valid concerns about the proportionality of sentencing being raised. All three of these offences have had constitutional challenges, with varying success, to their mandatory minimums under section 12 of the Canadian Charter of Rights and Freedoms (“the Charter”). The accused in these cases may include first time offenders or individuals that are actively seeking help for factors that lead them to commit the offence. Whether these mandatory minimums really assist in the administration of justice by limiting judicial discretion is a question that should be asked.

Challenges to the Minimums

R v Reeves (“Reeves) is a relatively recent case that found that the mandatory minimum sentence for sexual interference and invitation to sexual touching were unconstitutional while the mandatory minimum sentence for luring was not unconstitutional. The accused requested a picture of two friends kissing and referenced a potential sexual encounter with the complainant and was convicted by a jury of invitation to sexual touching, sexual interference, and child luring. Reeves had no prior criminal record, was a trained and experienced social worker who had lost his employment as a result of the events, and was re-employed as a delivery driver. As well, for more mitigating factors, Reeves had since pursued counselling to help deal with the sexual abuse he suffered in his youth and had familial support and was genuinely remorseful for his actions which went to his ability to be rehabilitated. For aggravating factors, he was much older than his victims, had supplied them with alcohol, and his electronic communication with the complainant was consistent with grooming.

The minimums under section 151 were already found unconstitutional in R v Ford, but the Judge in Reeves applied the same reasoning to the offence of invitation to sexual touching. The reasoning relied on an hypothetical of a 20-year-old who meets a 13-year-old and, after spending several hours together, they kiss with a view to eventually engaging in sexual intercourse. While still "just kissing", they are interrupted by a passing police officer. Without more, a kiss would be sufficient to attract criminal liability if the court was satisfied the nature of the kissing has a sexual purpose based on R v Menjivar. In the view of the hypothetical judge, in the absence of a mandatory minimum provision, that would call for a sentence ranging from a suspended sentence to a conditional sentence or, at the most, a custodial sentence measured in days, not months. Therefore, the mandatory minimum sentence of one year of imprisonment required to be imposed upon conviction of an offence under s 151(a) was grossly disproportionate as defined in Nur and Lloyd. Further, the Crown discretion to proceed by summary conviction or to decline to charge cannot save a minimum sentence that mandates cruel and unusual punishment. The Crown sought the mandatory six-month minimum for each charge but Reeves ultimately was sentenced to the mandatory minimum of one years' imprisonment for luring, seven days consecutive imprisonment for invitation to sexual touching, and 14 days consecutive imprisonment for sexual interference.

Reeves has since been cited and confirmed in several cases in Alberta but whether the case has larger application in other provisions and the decision is not appealed to the Court is still to be decided. However, if the treatment of section 153 is any indication, it is likely that the minimums in both section 151 and section 152 are going to continue to be successfully challenged.

In 2018, R v EJB upheld the legislation on the basis that the reasonable hypotheticals used by the sentencing judge in that case were too far-fetched but there are several cases that found 153(1.1)(a), when based on a reasonable hypothetical, violated the prohibition against cruel and unusual punishment in section 12 of the Charter. In R v Hood (“Hood”), the defence, when arguing section 12, posed the hypothetical of a new teacher in her 20s with bipolar disorder who texts a 17-year-old student about a school assignment. The hypothetical then subsequently poses that they meet and she touches the student sexually during a manic episode. This hypothetical was viewed to be reasonable and not far-fetched.

Manitoba considered the mandatory minimums for section 153, sexual exploitation, and noted that the Court dismissed the application for leave to appeal in EJB. The Court went further to note that, in the application for leave to appeal, the documents filed in support of that application demonstrated by Alberta Court of Appeal in EJB, when upholding the constitutionality of the mandatory minimum sentences for sexual exploitation, specifically noted its divergence from the Hood decision from Nova Scotia.

In R v Dyck, the Court found that the sentence imposed by the trial judge was not unfit and that it would not constitute a proper use of judicial resources to have the matter reargued before the panel. Since the sentence was not unfit, the Court declined to consider the Charter issue, about whether or not the mandatory minimum sentences were constitutional. It still is undecided and should a case arise with the right set of facts, it is quite possible that Manitoba may find that the mandatory minimum sentences for sexual exploitation under section 153 is unconstitutional.

Given the conflicting case law from different provincial jurisdictions and the constitutional issues that have already arisen for both sections 151 and 152 regarding the mandatory minimum provisions, clear guidance from the Court should be given. As well, since Parliament is revisiting mandatory minimum penalties for offences related to controlled substances and firearms with Bill C-22, perhaps it is time to re-examine the mandatory minimum provisions for sexual offences.