Speaking into a Void: Parliamentary Action Ignored in Sexual Violence Sentencing

Abstract

Canadian sentencing jurisprudence is heavily reflective of the Alberta Court of Appeal’s determination of a three-year starting point for major sexual assaults in R v Sandercock, even in those jurisdictions that did not adopt it. This decision, issued in 1985, reflects attitudes and beliefs about sexual assault that are outdated and rely on improper myths and stereotypes. The Court also relied on sentencing guidance from England that was revisited in that country the very next year and has been revised numerous times since. Additionally, Parliament has made significant changes to the Criminal Code in the sentencing realm since. Despite these factors and the significantly greater understanding of the harm caused by sexual violence since 1985, courts continue to impose sentences that reflect the Sandercock starting point. Often, courts go below it, failing to account for the significant impacts of sexual violence on offenders.

It is time to revisit sentencing guidance in this area. In this article, we look to comparable legal systems, and demonstrate that while other countries have adjusted their sentencing guidance to reflect the greater understanding that society now has of the harms caused by sexual violence, Canada has not. Instead, judges have talked tough, but failed to follow through. We provide numerous principled reasons that appellate courts across the country need to provide updated sentencing guidance and argue that sentences in this area must increase to properly account for appropriate sentencing principles.