Condamnations pour infractions sexuelles sur enfants

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Cette page a été mise à jour ou révisée de manière substantielle pour la dernière fois April 2023. (Rev. # 2638)

n.b.: Cette page est expérimentale. Si vous repérez une grammaire ou un texte anglais clairement incorrect, veuillez m'en informer à [email protected] et je le corrigerai dès que possible.

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Youthful and Child Victims

Parliament has "made it very clear that the protection of children is a basic value of Canadian society which the courts must defend." The courts are being called upon to focus on child exploitation offences is because of their increasing number.

Sexual offences against children are inherently violent.

Need to Protect Children

The law must protect children not only from sexual exploitation but any sexual contact with adults. This is necessary because of the inherent power imbalance and the "physical and psychological consequences" of sexual contact.

Child Victims Different From Adult Victims

Sentencing judges should not rely upon prior similar caselaw wherein the victim is an adult as an example of parity.

Technology and Opportunity

The advent of social media and communication technology has increased the opportunities to victimize children.

Inherent exploitation

Any sexual contact between the child and adult is de facto exploitative nature.

Females and Marginalized Groups

Victims who are female or from marginalized communities are recognized as being at the greatest risk.

Harm Caused by Sexual Offences

The recognized harm of sexual offences upon children is "profound" and includes:

• overly compliant behaviour and an intense need to please;
• self-destructive behaviour, such as suicide, self-mutilation, chemical abuse, and prostitution;
• loss of patience and frequent temper tantrums;
• acting out aggressive behaviour and frustration;
• sexually aggressive behaviour;
• an inability to make friends and non-participation in school activities;
• guilty feelings and shame;
• a lack of trust, particularly with significant others;
• low self-esteem;
• an inability to concentrate in school and a sudden drop in school performance;
• an extraordinary fear of males;
• running away from home;
• sleep disturbances and nightmares;
• regressive behaviours, such as bedwetting, clinging behaviour, thumb sucking, and baby talk;
• anxiety and extreme levels of fear; and
• depression.

There is an increased risk that the victim in adulthood will engage in sexual violence themselves.

Harm Beyond Victim

The harm also spreads beyond the victim. It will harm the victim's family, community, and society at large.

Actual Harm and Potential Harm

The court can go beyond measuring actual harm and consider potential harm as the full harm cannot be known at the time of sentencing.

Seriousness of Sexual Offences Against Young Victims

Children are a "priceless asset". It is "extremely important" to denounce any conduct that takes advantage of their vulnerability.

It is suggested that "force is inherent in all sexual assaults on children."

Many courts have expressed society's concern for crimes, including sexual offences, against children.

Predatory sexual offences are those class of sexual offences where the offender uses the imbalance of power between himself and a victim, usually children, to satisfy sexual needs by way of a criminal offence.

Absent exceptional circumstances, denunciation, general and specific deterrence, and the need to separate offenders from society, take precedence over all other objectives of sentencing.

Children are recognized as one of the "most valued and most vulnerable assets." They are generally incapable of defending themselves and so are easily targeted. It is for this reason that courts must focus on protecting children.

Children are vulnerable as they cannot protect themselves.

A child is inherently vulnerable. Accordingly, they can be coerced without threats ever being articulated.

Friesen Principles and Factors

There are several considerations required in sentencing for child sexual offences that are sometimes referred to as "Friesen" principles:

• The prevalence of sexual violence against children, especially in light of "new technologies". (para 50)
• The disproportionately low sentences of the past;
• It is an error to treat sexual interference (ie. sexual touching) as less grave than sexual assault involving intercourse.

The factors Friesen requires to be emphasized, include:

• Courts must consider the likelihood of re-offence (paras 122 to 124)
• Abuse of a Position of Trust (paras 125 to 130)
• Duration and frequency of the offence (paras 131 to 133)
• age of the victim (paras 134 to 136)
• Degree of physical interference (paras 137 to 147)
• The degree of "participation" from the victim is not a mitigating factor (paras 148 to 154)

The "wrongfulness and harmfulness" of offences upon children manifest in ways including:

1. the harm to the personal autonomy, bodily integrity, sexual integrity, dignity and equality of children (at paras 51–59);
2. the direct damage to immediate familial and community relationships (at paras 60–61);
3. the indirect damage to families, communities and society (at paras 62–64);
4. the wrongfulness of exploiting children’s weaker position in society (at paras 65–67);
5. the disproportionate impact on girls and the links to violence against women (at paras 68–69); and
6. the disproportionate impact on Indigenous people and other vulnerable persons (at paras 70–73).

A more modern approach to sentencing for child sexual offences should include the following:

1. account for harmfulness and wrongfulness in the proportionality assessment (Friesen at para 75);
2. address and reaffirm the gravity of the offence, with particular emphasis on
   1. the inherent wrongfulness of the offence (at paras 77–78);
   2. the potential harms to the child (at paras 79–84); and
   3. the actual harm (at paras 85–86);
3. recognize the degree of responsibility of the offender and avoid stereotypes that minimize the harms (at paras 87–92); and
4. still apply proportionality, even if there does not seem to be a specific victim (at paras 93–94).

Objectives

Primary objectives

Section 718.01 directs courts to give primacy to denunciation and deterrence for offences that involve "the abuse of a person under the age of 18 years." This section simply codifies already existing principles.

Denunciation and deterrence have the highest priority in sentencing for offences involving the abuse of children.

Failure to give primary consideration to denunciation and deterrence is an error in principle.

Rehabilitative factors must still be considered. However, the principles of restraint and rehabilitation are still a factor but are secondary for offences involving young victims.

It is prohibited to put any secondary objective above denunciation and deterrence.

Psychological Harm

It has been recognized by courts that child victims of sexual offences suffer from long-lasting damage. They suffer from emotional trauma that is often permanent. As adults they "may become incapable of forming loving relationship, always fearful of re-victimization by sexual partners. Further, the matured victim may become a sexual predator himself. It is often that an offender will report being victimized by other sexual predators as a child."

The judge should consider the "likelihood of psychological harm to the victim." But the judge does not need to take judicial notice of the psychological harm caused by a sexual offence.

Aggravating and Mitigating Factors

Section 718.2(a)(ii.1) deems aggravating where there is "evidence that the offender, in committing the offence, abused a person under the age of eighteen years."

Any offence where children are the target, should be treated as an aggravating factor to sentence. This is especially so where the perpetrator is a family member.

Violence

Any form of violence or threat of violence beyond the inherent violence to sexual offences against a person under the age of 18 will be treated as an aggravating factor.

Awareness of Accused

It has been recognized that, except in rare cases, the accused will have at least some awareness of the harm that their actions caused.

Voluntary Participation of the Victim

See Victims as a Factor in Sentencing#Victim Under 18 Years of Age

Good Character

It has been recognized that previous good character has little importance when sentencing offenders for child sexual offences.

Significant Factors

There are certain factors that are considered "significant" for child sex offences:

• Likelihood to re-offend
• Abuse of a position of trust or authority
• Duration and Frequency
• Age of the Victim
• Degree of Physical Interference
• Victim Participation

Grooming

Any form of targeting of a specific victim will enhance the gravity of the offence.

Evidence of "grooming" a youthful victim before or during the commission of the offence is an aggravating factor in sexual offences involving children.

Grooming can take the form of cultivating a relationship of trust or undertaking a process of relinquishing inhibitions all with a view to advancing a plan to sexually exploit a young person.

Psychology of Child Sexual Offences

Experts in topics such as pedophilia have given evidence claiming some of the following:

• pedophilia is a life-long condition. A pedophile is always at risk of re-offence

Available Sentences

Conditional Sentences

Given the need to raise the penalties for child sex offences, conditional sentences will only be "rarely" imposed. There must be an "exceptional circumstance" that renders incarceration inappropriate. Exceptional circumstances can include medical hardships that cannot be accommodated by the correctional facility.

Ranges

It is suggested that a first time offender convicted of a single incident of intercourse with a child should be in the mid to upper single digits sentence is appropriate.

In Ontario, a person in a position of trust who abuses children over a longer period of time will normally receive a sentence in the upper single digits or more.

In Alberta, the "starting point" for "a single serious sexual assault on a child by a person in a position of trust is 4 years."

In Manitoba, "major sexual assaults [against] a young person within a trust relationship by means of violence, threats of violence or by means of grooming" have starting range of 4 to 5 years.

It has been suggested that sexual abuse of a child, particularly sexual intercourse, by a person in authority, is in a range of 3 to 5 years.

Any sort of series of sexual offences against young persons by adults in positions of trust over a long duration should attract sentences in the "high" range single-digit of years.

Friesen Increase

The precedent of Friesen does not require lengthier sentences in every case involving children. The precedent covers all forms of child sexual contact, not limited to offences of sexual contact.

Sentencing Cases

• Sexual Assault (Sentencing Cases)
  • Sexual Assault of Person Under 16 (Sentencing Cases) (Pre-Friesen)
  • Sexual Assault of Person Under 16 (Sentencing Cases) (Post-Friesen)

See Also

• Sexual Offences
  • Online Sexual Offences
  • Child Pornography Sentencing