The CBA Sections support the Supreme Court of Canada’s (SCC) established approach to sentencing for sexual offences against children2, which generally excludes CSOs due to the gravity of these crimes. Nonetheless, we advocate for a clear framework that permits such orders only in truly exceptional circumstances, ensuring judicial discretion in rare cases where it is justified. Bill C-14 would remove the CSO availability for certain sexual offences, including the offence of sexual assault when prosecuted by indictment. We understand that the rationale responds to the concern of an offender serving their sentence at home in the same community where their victim resides and demonstrates that perpetrators of serious sexual offences will face serious consequences for their actions.
The CBA Sections acknowledge that sexual violence causes profound and often lifelong trauma to victims and survivors, as well as serious harm to society. They further recognize that the prospect of an offender convicted of sexual offences serving a sentence in the community may be troubling and may impede a survivor’s recovery yet maintains that this option should remain available for the rare, exceptional cases in which such a sentence is appropriate.
The CSO has been in the Criminal Code (the Code)3 since 1996. It was introduced, in part, to address overincarceration in Canada, particularly for Indigenous offenders. It allows judges to sentence an offender to “jail” in the community.
It is a statutory requirement that, before imposing a CSO, the court is satisfied that serving a sentence in the community does not endanger the community’s safety and is consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Code.4 These include:
- denunciation of unlawful conduct and the harm done to victims or to the community
- deterrence of the offender and other persons from committing offences
- the separation of offenders from society, where necessary
- the rehabilitation of offenders
- the provision of reparations for harm done to victims or to the community, and
- the promotion of a sense of responsibility and acknowledgment of harm done to victims or to the community.5
Other relevant sentencing principles in s. 718.2 of the Code include the principle that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”6
Bill C-22, An Act to amend the Criminal Code and the Controlled Substances Act,7 recently restored CSO availability for a variety of offences. Prior restrictions to CSO availability coincided with an increase in systemic delay, and increasing overincarceration of Indigenous persons.8 It was a shift in criminal law policy, intended to improve the system and permit more tailored sentences. CSOs also have the potential, generally, to reduce the costs of overincarceration.
Unfortunately, overcrowding in prisons has only increased over time, along with a general deterioration in the quality of prison conditions.9 Many Ontario institutions are “dangerously overcrowded”, with some operating at over 150% of their intended capacity.10
A. The importance of maintaining judicial discretion in sentencing
As appropriately explained by the SCC, sentencing is very much an individualized exercise, that seeks to answer whether: “For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code?”
The CBA Sections have long supported maintaining judicial discretion in sentencing, including the appropriate use of CSOs. In its 2011 submission on Bill C-10 (Safe Streets and Communities Act)11, the CBA Criminal Justice and Municipal Law Sections advocated against enacting CSO limits for certain enumerated offences and those carrying a maximum penalty of 14 years or more. The Sections argued that limiting CSOs, “…would result in restrictions that are far too broad, often arbitrary and inflexible, and could well result in sentences that are, simply put, unjust.”12 In the CBA’s 2022 submission on Bill C-513, it similarly argued that Code restrictions on CSOs were discriminatory, overbroad and failed to achieve their objective.14
The CBA Sections acknowledge that a CSO for serious sexual offences would be a rare and exceptional sentence – as it should be. As explained by the Ontario Court of Appeal in R. v. R.S.15. CSOs will “rarely, if ever, be proportionate in the context of violent sexual assault cases”, and the sentencing objectives of deterrence and denunciation will normally require penitentiary sentences in the 3 to 5 year range for such offences.16 Absent a highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years.17 However, the Court of Appeal also acknowledged that there are circumstances where departing from the range of three to five years, either above or below, will be “entirely appropriate”.18 For more serious forms of sexual assault, the typical sentence will be even higher, and the likelihood of a CSO even more remote.
Nevertheless, the CBA Sections maintain that judicial discretion in sentencing for sexual offences, including the discretion to impose a CSO, must be maintained to allow for those rare and exceptional circumstances, as elaborated upon below.
B. Broad spectrum of conduct captured by the offence of sexual assault
Sexual assault is a hybrid offence, meaning the Crown may elect to proceed summarily or by indictment. Even when prosecuted by indictment, the offence may capture conduct at the lower end of the severity spectrum—such as kissing, “groping,” or non-penetrative touching over clothing—for which the Crown would typically proceed summarily. However, where a complainant’s allegations span a broad range of conduct, the Crown may elect to proceed by indictment. In such cases, an accused might be acquitted of the most serious allegations but convicted of less serious conduct that nonetheless meets the legal definition of sexual assault. Depending on the proven facts and the offender’s circumstances, including any risk of reoffending, a CSO may well be an appropriate sentence.
C. Consideration of “the most vulnerable offender” / reduced moral culpability
The SCC stated the following in R. v. Friesen19, when discussing the need to increase sentences for sexual assaults against children:
[91] These comments should not be taken as a direction to disregard relevant factors that may reduce the offender’s moral culpability. The proportionality principle requires that the punishment imposed be “just and appropriate . . . and nothing more” (M. (C.A.), at para. 80 20(emphasis deleted); see also Ipeelee, at para. 3721). First, as sexual assault and sexual interference are broadly defined offences that embrace a wide spectrum of conduct, the offender’s conduct will be less morally blameworthy in some cases than in others. Second, the personal circumstances of offenders can have a mitigating effect. For instance, offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability (R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, at para. 6422; R. v. Hood, 2018 NSCA 18, 45 C.R. (7th) 269, at para. 18023).24
The most vulnerable offender should be considered to determine whether a CSO remains available. Offenders have increasingly complex histories and traumatic backgrounds, for many reasons. Some have been victims of or exposed to sexual or physical abuse, from an early age, themselves. Some may have cognitive limitations. Some have dependents, such as disabled or aged family members, who may otherwise experience significant hardship if the offender was sentenced to incarceration in an institution.
For Indigenous offenders, other Gladue factors25 must be considered, such as: “the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples”.26 Meanwhile, consider that Indigenous women are disproportionately represented as victims of physical and sexual violence.27 As with all victims of violent crimes, the safety and long-term trauma of Indigenous sexual violence victims, especially in remote areas, must be carefully weighed. Indeed, s. 718.04 of the Code specifically mandates that, when imposing a sentence involving the abuse of a person vulnerable due to personal circumstances – including because the person is Aboriginal and female – the court shall give primary consideration to the objectives of denunciation and deterrence.28
Where there are exceptionally compelling mitigating circumstances, or factual findings of diminished moral blameworthiness, and an assessment of a low risk to reoffend, particularly for an early guilty plea, a CSO may be the just and appropriate sentence in the circumstances.29 Depending on the situation, for some individuals, removing the option for a CSO would lead to an unjust outcome.