POLS 3300 Paper
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University of Guelph *
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3300
Subject
Political Science
Date
Dec 6, 2023
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10
Uploaded by AmbassadorCrocodilePerson939
Sentencing Policy Paper
POLS*3300
November 12
th
, 2023
2
Introduction of Offences Against the Canadian Criminal Code
The Criminal Code is a vital piece of legislation as it maintains public order and upholds
justice. The Criminal Code creates a basis for a just and orderly society by outlining criminal
offences and their suitable penalties. The outline of the criminal offences and their corresponding
penalties act as a guide for judges while sentencing during trials. Sentencing varies vastly from
case to case even when involving the same criminal offence. To understand the complexity of
sentencing in cases of the same crime, this paper will analyze three cases under section 271 of
the Criminal Code, which covers sexual assault, or “Offences against the Person and
Reputation”. As stated in section 271 of the criminal code “every one who commits a sexual
assault is guilty of (a) an indictable offence and is liable to imprisonment for a term not
exceeding ten years and if the complainant is under the age of 16, to a minimum punishment of
one years imprisonment; or (b) an offence punishable on summary conviction and liable to
imprisonment for a term not exceeding 18 months, and if the complainant is under the age of 16,
to a minimum punishment of 90 days imprisonment” (s. 271,
Criminal Code of Canada
). The
following cases of R. v. Kaye, R. v. Wilson and R. v. Torres all fall under s. 271 and underwent
sentencing in 2012.
Summary of the R. v. Kaye Case
In the case of R. v. Kaye, Kaye, who had just turned 18 at the time of the offence, was
accused of sexually assaulting a 14-year-old female who was unconscious due to her level of
intoxication, Kaye was also under the influence of drugs and alcohol (
R. v. Kaye
, 2012). There
was no victim impact statement, however, it was said that after the offence the victim had
attempted suicide (
R. v. Kaye
, 2012). The crown also made note that the court is required to
consider the principles set out in s. 718.2(a)(ii.1) of the
Criminal Code
in that the abused person
3
was under 18 years of age, meaning that for offences such as the following, the starting sentence
is three years plus or minus aggravating and mitigating circumstances (
R. v. Kaye
, 2012). Due to
the fact that Kaye is an Aboriginal man, the judge was governed by the provisions of ss. 718,
718.1, and 718.2 of the Criminal Code as well as the directions of the Supreme Court of Canada
in the case
R. v. Glaude
(
R. v. Kaye,
2012).
When Kaye failed to show up, the sentencing, which
was originally planned for a mid-late June 2012 adjournment during the trial, had to be
postponed. In late August 2012, the sentencing process was recommenced following their
subsequent apprehension (
R. v. Kaye,
2012). After considering the general principles and
mitigating and aggravating factors, the Crown asked for a sentence of four years imprisonment
and a SOIRA order for a period of 20 years (
R. v. Kaye,
2012). The judge imposed a sentence of
three years to be served as well as a 20-year term under the Sex Offender Information
Registration Act (
R. v. Kaye,
2012). The judge decided to waive the fine to be paid to the victim
as it was felt as though it would cause more harm to Kaye’s children and their well-being (
R. v.
Kaye,
2012).
Summary of the R. v. Wilson Case
On August 11
th
, 2012, Bradley Wilson, who had a record with many alcohol-related
offences, was found guilty of sexual assault (
R. v. Wilson
, 2012). The victim was a bartender and
the incident had occurred after she had begun to close (
R. v. Wilson
, 2012). After an attempt to
get Wilson to vacate the pub, he chased her and a struggle ensued, he then took her into the
washroom and sexually assaulted her (
R. v. Wilson
, 2012). During the struggle, the victim
suffered a leg fracture which led to added pain, suffering, discomfort, and financial loss (
R. v.
Wilson
, 2012). The victim made an impact statement during the trial describing the aftermath of
the sexual assault and how it has made her feel unsafe and as though her reputation has been
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4
tarnished (
R. v. Wilson
, 2012). Despite the context of serious sexual assault, the Crown suggested
that a sentence in excess of three years was appropriate (
R. v. Wilson
, 2012). The judge ordered
that Wilson be entered on the Sexual Offender's Registry, that he provides a DNA sample, that he
be prohibited from possessing firearms or explosives for 10 years and an appropriate sentence of
incarceration (
R. v. Wilson
, 2012). After considering the aggravating and mitigating factors and
Wilson’s past record with drugs and alcohol, he was sentenced to 24 months imprisonment,
minus five months on remand (19 months’ imprisonment) and three years probation on the
conditions that he maintains good behaviour and not consume any drugs or alcohol (
R. v. Wilson
,
2012).
Summary of the R. v. Torres Case
22-year-old Torres plead guilty to sexually assaulting a 13-year-old boy on the dates of
January 23
rd
, 2009, and January 25
th, 2009
(
R. v. Torres
, 2012). The Crown stated that a sentence of
four years imprisonment was appropriate as the case included a 13-year-old and two separate
assaults, and the inability to consent to the sexual activity which constituted a major sexual
assault (
R. v. Torres
, 2012). The defence submitted that the crime, though serious, falls short of a
major sexual assault and that the victim initiated sexual contact (
R. v. Torres
, 2012). It was also
stated that the victim felt as though there had been no impact on him and that an appropriate
sentence would be 90 days of incarceration and two years’ probation (
R. v. Torres
, 2012).
The
case followed the precedent of decisions in previous major sexual assault cases involving
children (
R. v. Torres
, 2012). After considering the applicable sentencing principles, the judge
decided that an appropriate sentence was 36 months of incarceration, an order requiring Torres to
provide a sample of his DNA, Torres was to comply with a SOIRA order for a period of 20 years,
5
he was prohibited from any sort of contact with the victim and required to participate in
specialized Sexual Offender Treatment and individual therapy (
R. v. Torres
, 2012).
Variance in Imposed Sentences
In the three cases mentioned above, all offences violated the same section (s. 271) of the
Canadian Criminal Code. As previously stated, “every one who commits a sexual assault is
guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding ten
years and if the complainant is under the age of 16, to a minimum punishment of one years
imprisonment; or (b) an offence punishable on summary conviction and liable to imprisonment
for a term not exceeding 18 months, and if the complainant is under the age of 16, to a minimum
punishment of 90 days imprisonment” (s. 271,
Criminal Code of Canada
). Regarding the cases
of Kaye, Wilson and Torres, they were all convicted of the same offence; however, different
sentences were imposed. In the case of
R. v. Wilson
, the sentence was two years imprisonment
minus the 5 months he had already spent incarcerated, whereas, in the cases of
R. v. Kaye
and
R.
v. Torres,
they were both sentenced to three years imprisonment. As each case had its own set of
circumstances and specifics, this is what causes a difference in each sentencing. Each case,
though under the same offence, has its limitations when it comes to the sentencing process. An
example of these limitations is described in the case of
R. v. Kaye
, as the judge was governed by
the provisions of section 718, ss. 718.1 and 718.2 of the Criminal Code because Kaye was
Aboriginal (
R. v. Kaye
, 2012). When sentencing the accused, factors such as the gravity of the
offence, the likeliness of recidivism, and whether they have pleaded guilty or not guilty, all
contribute to the severity of their sentence. In the case of
R. v. Wilson
, it was noted during the
trial that Wilson had support from the community and his family who vouched for his character
which seemingly affected his increased probation and decreased sentence (
R. v. Wilson
, 2012).
6
Comparatively, in
R. v. Kaye
, Kaye’s sentence was increased as there was apparent emotional
damage to the victim as shown through her suicide attempt, the fact that she was a minor and
extremely vulnerable as a result of intoxication (
R. v. Kaye
, 2012).
Aggravating and Mitigating Factors
As stated in section 718.2 of the Canadian Criminal Code, there are aggravating and
mitigating factors that contribute to the increase or reduction of sentencing depending on those
present in each case. The factors must be considered by judges during the sentencing process to
ensure a just penalty for the offence (s. 718.2,
Criminal Code of Canada
). As stated in the case of
R. v. Kaye
, some aggravating circumstances were that the victim was 14, the victim was in a
vulnerable condition as she had passed out due to alcohol consumption, and there was proof of
physical resistance. These factors would have been taken into consideration when deciding the
sentence. In
R. v. Torres
, there was one aggravating circumstance which was that there were two
different occasions of sexual assault, which would have been considered during the sentencing.
Lastly in
R. v. Wilson
, there were no factors explicitly listed, however, it can be taken into
account that the victim suffered from financial loss, which is stated as an aggravating factor in
the Criminal Code (s. 718.2,
Criminal Code of Canada
). Additionally, there were no mitigating
factors listed in
R. v. Wilson
, but there were in both
R. v. Kaye and R. v. Torres
. In the case of
R.
v. Torres
, mitigating factors included his guilty plea as well as his reported good behaviour and
acceptance (
R v. Torres
, 2012). In
R. v. Kaye,
the mitigating factors were his age at the time of
the offence, his reportedly changed behaviour and the overcoming of his substance abuse issues
two years prior to the trial (
R. v. Kaye
, 2012). Given these aggravating and mitigating factors,
they were outlined in order to aid the judges in the sentencing process.
Principles of Sentencing
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7
As outlined in section 718 of the Criminal Code, offences of sexual assault have multiple
principles of sentencing that judges must follow; “to denounce unlawful conduct, to deter the
offender and other person from committing offences, to separate offenders from society where
necessary, to assist in rehabilitating offenders, to provide reparations for harm done to victims or
the community, and to promote a sense of responsibility in offenders” (s. 718,
Criminal Code of
Canada
). In the three previously mentioned cases, the sentencing principles were explicitly
stated in order to conclude what sentence would reflect the severity of the offence. The sentence
in
R. v. Torres
fulfills the principles of sentencing in the case of sexual assault as it encourages
deterrence through imprisonment as well as rehabilitation through the prescribed therapy. In the
case of
R. v. Wilson,
the sentence satisfied the principles of sentencing, however, there was more
of a focus placed on rehabilitation as seen through the extended probation period. Finally, in the
case of
R. v. Kaye
, the principles of sentencing were satisfied as well as a focus placed on the
labelling and separation of the offender as he was sentenced to comply with the Sex Offenders
Information Registration Act for 20 years (
R. v. Kaye
, 2012). It was evident through the
sentencing that the required principles had been fulfilled in all three cases.
Reflection of Gravity and Culpability
I would consider sexual assault offences to be one of the most serious violations of the
Criminal Code. In the cases of
R. v. Wilson, R. v. Torres
and
R. v. Kaye
, though there were
mitigating factors to advocate for the offender's rehabilitation as opposed to encouraged
punishment, some of the sentences could have been more severe given the gravity of the
crime. In the case of
R. v. Wilson
, which was the shortest imposed sentence, it was
physically the most severe of the three cases mentioned. In addition to the physical and
emotional damage suffered by the victim, the offender's display of aggression and violence
8
while under the influence of alcohol is considerably concerning and could have warranted a
prolonged sentence of incarceration. However, in the cases of Torres and Kaye, the
emphasis on rehabilitation was presumed to be a result of the mitigating factors and was
suitable for the crime committed. The only concern would be in the case of
R. v. Kaye
, there
was little mention of a probation period which could serve as a problem in terms of
recidivism and reintegration into society.
Re-Drafting the Criminal Code Regarding Sexual Assault
According to section 271 of the Criminal Code of Canada, the minimum punishment for
the indictable offence of sexual assault is one year in prison, while the period for an offence
punished on a summary conviction is 90 days. Even though these periods might seem short for
the weight of this violation, it's crucial to understand that sexual assault cases can range widely
in severity. Additionally, throughout time, the legal system controlling these instances has
improved, offering greater guidelines and regulations than in the past. The longest penalty that
can be imposed for sexual assault that involves indictable charges is ten years imprisonment
(Criminal Code of Canada, s. 271). The prospect of increasing this maximum sentence is taken
into consideration because sexual assault cases have the potential to escalate into extreme
violence or even death. This is especially true in cases when offenders show little regret for their
crimes. Someone capable of committing such a crime is unlikely to feel any sort of remorse or
resentment towards their actions. Addressing the harm done to victims or the community is one
of the sentencing objectives, as stated in the Criminal Code (s. 718.2, Criminal Code of Canada
R.S.C., 1985, c. C-46). A longer maximum sentence might increase the likelihood of more
extensive compensation. Additionally, as sexual assault is often motivated by hatred, emotional
9
turmoil, and mental health concerns, it is critical that all those found guilty of this type of offence
be required to participate in treatment and rehabilitation programs.
Conclusion
Cases of sexual assault that fall under the jurisdiction of the Criminal Code of Canada are
extremely serious, and since there are so many considerations involved in the sentencing process,
it can be difficult to navigate. Three cases of sexual assault—
R. v. Torres
,
R. v. Kaye
, and
R. v.
Wilson
—are examined in this essay. A further understanding of the Criminal Code of Canada and
its intricate sentencing guidelines is obtained by a comparative examination of these instances,
taking into account their sentence outcomes, mitigating and aggravating elements, and the
sentencing concepts emphasized by the judges.
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10
References
R v. Kaye,
2012 SKQB 360
R v. Torres
, 2012 ABQB 4
R v. Wilson,
2012 NBQB 326
S. 271,
Criminal Code of Canada
R.S.C., 1985, c. C-46 S. 718.2,
Criminal Code of Canada
R.S.C.,
1985, c. C-46