R v SJB, 2018 MBCA 62
[19] A sentencing judge is required by section 718.2(a) of the Criminal Code to take into consideration the principle that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender”.
[20] The sentencing judge cannot, however, use the absence of an aggravating factor as mitigating or the absence of a mitigating factor as aggravating; to take either path is an error in principle. The absence of a mitigating or aggravating factor is neutral to the determination of sentence. As the Alberta Court of Appeal explained in R v Alcantara, 2017 ABCA 56 (at para 69):
Reference to what an offender was not proven to do — the doing of which might aggravate the offence — is not a mitigating factor. It is the absence of an aggravating factor. Consequently it would not be a mitigating factor as against, for example, a starting point or the bottom of an established range. By the same token, absence of mitigation is not aggravation: see eg Republic of Croatia v Snedden, [2010] HCA 14 [Austl HC] cited in Alcorn [R v Alcorn, 2015 ABCA 182] at para 36.
See also R v BM, 2008 ONCA 645 at para 7; and R c Barrett, 2013 QCCA 1351 at paras 24-25.
[21] Counsel for the accused appropriately conceded at the appeal that the accused’s actions were inherently violent, given the complainant could not consent to sexual intercourse with the accused because of the nature of their relationship (see section 150.1(1) of the Criminal Code).
[22] Physical violence or the threat of it beyond the violence inherent in a sexual offence against a person under age 18 is an aggravating circumstance on sentencing (see Sidwell at para 53). However, an offender who does not use or threaten additional non-sexual violence cannot claim the absence of that factor as reason to attenuate his or her high moral blameworthiness resulting from the exploitation of trust (see R v Stuckless (1998), 1998 CanLII 7143 (ON CA), 127 CCC (3d) 225 at paras 40-44 (Ont CA); and R v Archer (2005), 2005 CanLII 36444 (ON CA), 202 CCC (3d) 60 at para 170 (Ont CA)).
[23] The judge erred when he characterised the lack of coercion, threat or pressure on the complainant to participate in sexual intercourse as a mitigating circumstance of the commission of the offence. The mere fact the complainant said “sure” to the proposition of the accused to having sexual intercourse does not reduce his moral blameworthiness.
[24] Ostensible consent by a person under age 18, who cannot legally consent to the sexual contact in question, is not a mitigating factor for the determination of the offender’s sentence (see R v Norton, 2016 MBCA 79 at para 42). Given the views of the Supreme Court of Canada in Audet about the irrelevance of consent to criminal liability for the offence of sexual exploitation, it is inappropriate for a sentencing judge to mitigate a sentence because of the young person’s willingness to participate in sexual touching without the exertion or threat of non-sexual violence (see R v JBS, 2009 ABCA 347 at para 4; and R v Hajar, 2016 ABCA 222 at paras 84-103).
[25] The judge also erred when he treated the absence of intimate images being taken or requested as being a mitigating factor. While it was appropriate for the police to make that inquiry to find out what happened, whether or not it occurred has no relevance to the commission of the offence of sexual exploitation. If the accused had taken intimate images of the complainant during the course of sexual intercourse, that would have given rise to the separate offence of making child pornography (see section 163.1(2) of the Criminal Code). In cases where both offences occur, consecutive sentences may follow (see R v Vigon, 2016 ABCA 75 at para 25; and R v ES, 2017 BCCA 354 at para 2). This properly reflects the separate harm that can arise from a permanent pornographic image of a child being made.
Aucun commentaire:
Publier un commentaire