R. v. S.C.W., 2019 BCCA 405
[30] Of note, however, is that Lacasse did not concern a statutory aggravating factor. While in Lacasse intoxication was an element of the impaired driving offence, intoxication was not a statutory aggravating factor under the Criminal Code. Lacasse makes no mention of the treatment of statutory aggravating factors that are themselves elements of the offence. In my view, Lacasse is distinguishable and stands only for the proposition that elements of an offence should not be used as common-law aggravating factors.
[31] The question raised by the appellant has been the subject of decisions of the Ontario Court of Appeal. In R. v. Gaukrodger, 2006 CanLII 31292 (ON CA), [2006] O.J. No. 3614 (C.A.), the offender, a school teacher, was convicted of sexual exploitation of the fourteen-year-old victim, a former student. The court found that she used her position of trust as his teacher and a close friend of the victim’s family to commit the offence. The trial judge referred to the “relationships involving trusts that the offender breached in committing the offence” as an aggravating factor. The offender argued that because breach of trust is an element of the offence for which she was convicted, it was an error in principle to treat it as an aggravating factor in sentencing. The Ontario Court of Appeal rejected this approach, and stated:
[4] …The facts which constitute essential elements of an offence do not thereby lose their relevance on sentencing. The facts which the Crown is required to prove to establish the offence do not somehow become “used up”. Those facts will always be part of the consideration on sentencing. The extent to which the facts that establish the essential elements of the offence can increase or decrease the sentence imposed will depend on the specifics of those facts considered in the context of the entire circumstances.
[32] In R. v. Tejeda-Rosario, 2010 ONCA 367, the complainant in a sexual assault was the patient of the accused, a psychiatrist. A short time into the professional relationship they began to see each other socially and over 9–10 years they had numerous sexual encounters. The Ontario Court of Appeal found the trial judge made an error in holding that
[12] …since it was breach of trust that made the otherwise consensual sexual activities crimes, it was “debatable whether in such a case it is also proper to consider breach of trust as an aggravating circumstance”. Parliament has expressly legislated that abuse of a position of trust is an aggravating factor on sentencing, pursuant to s. 718.2(a)(iii) of the Criminal Code…
[33] The court continued at para. 13, citing Gaukrodger for the notion that the Ontario Court of Appeal
… has expressly rejected the theory that the facts that constitute the essential elements of an offence are somehow exhausted and are not available for consideration at the time of sentencing. In this case, the nature of the abuse of trust was the defining aggravating factor and should have been given substantial weight by the trial judge in imposing sentence.
[34] In R. v. B.S., 2019 ONCA 72, the appellant was convicted of a series of sexual and violent offences against the complainant, who was 12–14 years at the time of the offences and therefore legally incapable of consenting to the sexual relations. The court specifically rejected the submission that the trial judge erred in considering the complainant’s age as an aggravating factor under s. 718.2(a)(ii.1) with respect to the sexual interference conviction, stating as follows:
[12] We do not agree that the trial judge inappropriately considered the complainant's age as an aggravating factor under s. 718.2(a)(ii.1) with respect to the sexual interference conviction, which necessarily involves the abuse of a person under the age of 16. The complainant's age was relevant to assessing her degree of vulnerability, and the age difference was relevant to assessing the appellant's degree of culpability.
[35] While this Court does not appear to have specifically considered the issue, it has considered deemed statutory aggravating factors notwithstanding they contained elements of the offence. In R. v. K.V.E., 2013 BCCA 521, the accused pleaded guilty to three counts of incest committed against his three daughters contrary to s. 155 of the Criminal Code, and one count of sexual touching committed against his granddaughter contrary to s. 151 of the Criminal Code. Stromberg-Stein J.A. noted as follows:
[34] … It is an aggravating factor to offend against children, particular[ly] where the offender is a parent who is in a position of trust: s. 718.2(a)(ii.1) and 718.2(a)(iii) of the Criminal Code…
Thus, while the age of the victim was an element of the s. 151 offence, and the position of trust as a parent was an element of the s. 155 offence, they were nonetheless considered as aggravating factors.
[36] I agree with the approach of the Ontario Court of Appeal. Parliament has expressly legislated that the age of the victim is an aggravating factor on sentencing. A.D.’s age was relevant to assessing her degree of vulnerability and the age difference between A.D. and the appellant is relevant to assessing his degree of culpability. Considering the age of the victim at the sentencing stage, despite it being an element of the offence, aligns with the purposes and principles of sentencing. If sentencing is to be an individualised process and sentences are to be proportionate to the gravity to the offence, the specific circumstances of each offence must be taken into account at sentencing, even where those circumstances overlap with the elements of the offence. The egregiousness of the sexual offence against a child increases as the age of the child decreases. Taking into account the age of the victim is an appropriate consideration of the specific facts of the individual offence.
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