This past week, a lot of outrage has been expressed online about another sexual assault case. In this case, a young man has been convicted of sexual interference, after he engaged in a sexual relationship with a thirteen year old girl. The matter resulted in a three month jail sentence for the twenty-one year old offender.
Now, it’s hard to imagine that anyone is too upset about a three month sentence for a sexual interference case. What has the public upset is the fact that the imposition of the jail term in this matter is being delayed so that the offender can finish his semester at the University of Calgary. This has the public upset.
On the one hand, I understand the outrage.
I get that it seems like another instance of a young, White male gaining an advantage available to him by virtue of his privileged status. But the situation is a lot more nuanced than that.
What the judge is doing here is quite proper, as frustrating as it is for the victim and her family. The reality is that victims of crime have only limited participatory rights in a criminal trial. There is good reason for that, which I’ve expressed in previous posts about Bill C-51 and the Victims of Crime Act. The nuance in this situation comes from the judge having to balance a number of principles set out in the Criminal Code of Canada.
Section 718 of the Criminal Code sets out the purpose and principles of sentencing. They are as follows:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
Courts have repeatedly ruled that despite the fact that sentencing is meant to be done using previous cases with similarly situated offenders and similar facts as “guidelines” for the range of sentence available, these are only guidelines and can be departed from if the court feels it appropriate. For example, a judge might order a sentence outside the usual range if there are exceptional circumstances. But courts have also ruled that sentencing is a highly individualized exercise.
In short, it is not about making the victim of a crime feel better. It is not about purely punishing unlawful conduct. The considerations a judge must have in sentencing are far more broad and are focused on society as a whole.
Here, the judge imposed a sentence that serves the purpose of denunciation: a jail sentence shows how terrible crimes involving sexual interference with a minor are. Criminal records and Sex Offender Information Registration Act orders also denounce the unlawful conduct. These measures serve too as a strong deterrent to those who consider committing these types of offences in the future. 90 days jail also serves the goal of separating an offender from society, which has been deemed necessary by Parliament in imposing mandatory minimums for this type of offence. A sentence like this also promotes a sense of responsibility.
Reparations in this type of offence cannot really be given. There is no restitution that can be paid. This is not damaged property. It is a damaged person. There will likely be a civil suit, which will focus on monetary damages for psychological harm. That is not the goal of the criminal sentencing process in providing reparations, nor is it the purpose of the criminal court.
Delaying the sentence may seem like a treat for this individual. But it is not. It is in fact exactly consistent with the other consideration in the Criminal Code, which is to rehabilitate offenders.
In Canadian law, rehabilitation is given a broad view. Rehabilitation does not mean “drug and alcohol treatment” or “counselling.” Rehabilitation is the steps that must be taken to transform a person from an offender into a contributing member of society, as much as possible. And this is achieved, in part, by assisting individuals who are separated from society by virtue of their crimes in reintegrating into society.
Jail by necessity separates people from society. But so do restrictive probation conditions, SOIRA orders, and criminal records. They all make it a lot harder to participate in society to the fullest extent, even after completion of a jail term.
Unlike what we see in the United States, our sentencing is designed not just to punish but to help people end up in a position whereby they do not need to be punished again. Rehabilitation and reintegration principles cut down on recidivism, which in the end is better for everyone.
By delaying this individual’s sentence, despite the optics, the judge allows a person who is partly through a school semester to complete that. So that when this individual finishes his jail sentence it will be easier to re-enrol in school, educate himself so that he can obtain valuable employment, meet age-appropriate consensual sexual partners, and contribute to society.
The best thing we can have come from offenders who are sentenced for crimes – regardless of their seriousness – is for those people to reintegrate, rehabilitate, and provide benefits overall to the public through their corrected and lawful behaviour. We can learn from those who are sentenced appropriately and who rehabilitate and move on. Denouncing the sentence given to the offender in this case all but ignores the importance of the individualized sentencing inquiry that promotes, ultimately, a just and peaceful society.
So while this decision may be difficult to come to terms with for many, it is reasonable and appropriate in law.
Vancouver Criminal Lawyer with a focus on impaired driving, marijuana legalization and related issues, and immediate roadside prohibition defence.