APPEAL WATCH: Sentencing Specificity and Sexual Offences Against Children in R v Sheppard

The Supreme Court of Canada (“SCC”) has granted leave [41126] to appeal the Alberta Court of Appeal’s (“ABCA”) decision in R v Sheppard, 2023 ABCA 381 [Sheppard]. The case will join R v Friesen, 2020 SCC 9 [Friesen] and R v Bertrand Marchand, 2023 SCC 26 [Bertrand Marchand] as further guidance on sentencing offenders who commit sexual crimes against children. 

This case involves three separate decisions on the sentence of a schoolteacher who was found guilty of sexual interference, invitation to sexual touching, and sexual assault in relation to one of his former students. The SCC will weigh in on the principles governing sentencing for sexual offences against children, a sentencing judge’s fact-finding duty in the context of a jury trial, and the scope of required reasons in sentencing decisions. 

Facts

The appellant was a schoolteacher and duty master at a boarding school in Alberta. While in that role, he committed several sexual acts against the complainant, a boy who was twelve and thirteen years old at the time of the offences (Sheppard, para 2). The complainant saw the appellant as a paternal figure during his time at the boarding school (Sheppard, para 363). At trial, a jury found the appellant guilty of sexual interference, sexual assault, and invitation to sexual touching (Sheppard, para 2). However, because of the jury’s unclear verdict, the number and nature of the sexual offences became a point of contention on appeal. Nonetheless, the sentencing judge found as fact that there were approximately ten instances of sexual violence perpetuated by the appellant against the complainant (Sheppard, para 89). The sentencing judge stayed the sexual assault conviction and sentenced the appellant to a six-year prison term for each of the other two offences, to be served concurrently (Sheppard, para 4). On appeal, the appellant requested his sentence be lowered to two years of incarceration with a three-year probation term (Sheppard, para 5).

Issues

To intervene and sentence afresh, an appellate court must be satisfied that the sentencing judge made an error in principle that had a material impact on the sentence, or that the sentence was demonstrably unfit (Sheppard, para 8). Thus, the questions before the ABCA were as follows:

1. Did the sentencing judge commit a material error in principle?
2. Was the sentence demonstrably unfit?

Decision

The ABCA split three ways in their decision. For different reasons, both Wakeling J.A. and Feehan J.A. allowed the appeal. Crighton J.A. would have dismissed the appeal, finding no reason to interfere with the sentencing judge’s decision. 

Wakeling J.A.

Wakeling J.A. found that the sentencing judge had erred in principle in two respects. First, the sentencing judge failed to specify and identify the crimes for which the appellant was being sentenced. The sentencing judge grouped the appellant’s crimes together under the umbrella of “sexual violence,” but did not enumerate the specific offences grounding her sentence (Sheppard, para 32-33). This was concerning because the offences of sexual interference and invitation to sexual touching are two different offences requiring different sentences (Sheppard, para 35). Because the appellant was charged with multiple offences and tried by jury, the jury’s guilty verdict did not tell the sentencing judge whether the offender committed one of each crime, ten of each crime, or any number of crimes. A jury is able to return a guilty verdict if each of the jurors believed that the Crown proved one of the alleged instances — regardless of whether they agreed unanimously on which instance it was (Sheppard, para 61). The sentencing judge never indicated in her reasons which of the sexual violations found by the jury formed the basis of her sentence, or which formed the basis of convictions for sexual interference or invitation to sexual touching (Sheppard, para 90). 

Further, the sentencing judge’s reasons only discussed a sentence in the context of sexual violence generally. For Wakeling J.A., this ran contrary to the fundamental principle of sentencing that a sentencer cannot increase a sentence by taking a crime for which the accused was never charged into consideration (Sheppard, para 100). Because there is no enumerated crime of “sexual violence” in the Criminal Code RSC 1985, c C-46, the sentencing judge sentenced an accused for a nonexistent crime (Sheppard, para 105). 

Second, the sentencing judge erred in principle by failing to provide reasons for her factual determinations made pursuant to s.724(2)(b) of the Criminal Code. (Sheppard, para 36). The sentencing judge failed to explain how she found the facts that undercut her sentence, particularly her reasons for accepting the complainant’s credibility. In Wakeling J.A.’s view, the sentencing judge did not adequately address significant factors undermining the complainant’s reliability, and the factual findings she did make were not open to her (Sheppard, para 39). A sentencing judge is required to assess the evidence led at trial and determine the facts that they believe the prosecutor has proved beyond a reasonable doubt (Sheppard, para 133). In her reasons, the sentencing judge in this case wrote no reasons for her factual conclusions, and failed to address fundamental issues such as the reliability of the complainant, who testified more than twenty-eight years after the offences occurred, and had limited recall or disdain towards the appellant (Sheppard, paras 150-152). Wakeling J.A. reasoned that because the complainant may have had difficulty accurately processing what happened due to his social status as an outcast and his involvement in therapy in the years following the offence, his reliability was up for debate (Sheppard, paras 155-156). 

Lastly, Wakeling J.A. found that the sentence imposed was demonstrably unfit. Wakeling J.A. found that there were no aggravating factors in this case, and that the Crown had not proved beyond a reasonable doubt that more than one instance of sexual touching occurred (Sheppard, para 54). Further, the appellant had lived a completely crime-free life in the thirty years following the offence, justifying a reduction to the starting point for sentencing (Sheppard, paras 54-55). Wakeling J.A. then constructed an analytical sentencing framework for crimes of sexual interference and invitations to sexual touching, categorising them based on degrees of severity (see Sheppard, paras 181-217). Wakeling J.A. indicated that the harm the crime caused the victim for both offences does not require an adjustment of sentence (Sheppard, para 233). Based on these criteria, Wakeling J.A. imposed a sentence of twenty-nine months’ imprisonment for sexual interference, and eighteen months’ imprisonment for invitation to sexual touching, to be served consecutively for a total of forty-seven months’ imprisonment (Sheppard, para 274).

Feehan J.A. (Concurring)

Feehan J.A. concurred with Wakeling J.A.’s disposition of the appeal but for different reasons. Feehan J.A. agreed that the sentencing judge’s reasons did not sufficiently set out the facts on which her sentence was based or the specific crimes for which the appellant was being sentenced. However, he added additional commentary on Friesen’s applicability and the sentencing judge’s decision to focus primarily on post-Friesen case law in determining her sentence.

In Friesen, the SCC held that the primary interests protected in the sentencing regime for sexual offences against children are personal autonomy, bodily integrity, sexual integrity, dignity, and the equality of children. The permanent and pervasive harm caused to children by sexual violence should be taken seriously in the sentencing process, particularly when determining proportionality (quoted in Sheppard, para 293-294). Sentences for sexual offences against children should prioritise denunciation and deterrence as the primary sentencing principles, and appellate courts should not shy away from making upward moves from prior sentencing precedents (Friesen, para 107). The sentencing judge recognized Friesen’s applicability and strongly considered the objectives of denunciation and deterrence (Sheppard, para 302). However, she rejected all pre-Friesen authorities, an error in principle which affected the appellant’s sentence (Sheppard, para 309). The sentencing judge should have considered relevant decisions from the date the offence was committed to the date of sentencing, including ABCA authority which directly instructs sentencing judges to continue using pre-Friesen authorities, albeit with qualifications going forward (Sheppard, para 301). Had she considered pre-Friesen authorities adequately, the range of sentences available to her would have been much broader (Sheppard, para 308).

In sentencing afresh, Feehan J.A. noted that the complainant had not expressed that the offence caused lasting psychological harm. The complainant had expressed that the trial was an opportunity for him to publicly state what had happened to him, and that he did not wish to see the appellant sent to prison (Sheppard, para 316). However, after reviewing various sentencing authorities, Feehan J.A. noted that sentences for sexual offences against children have increased, and settled on a four-year sentence for the sexual interference, and an eighteen-month sentence for invitation to sexual touching, to be served concurrently (Sheppard, para 355). Feehan J.A. lowered his sentence by one month to match Wakeling J.A.’s forty-seven month sentence.

Crighton J.A. (Dissenting)

Crighton J.A. would not have interfered with the sentence. Not only did she find that the bar for appellate intervention was not met, she took considerable issue with Wakeling J.A.’s analysis.

Crighton J.A. disagreed with Wakeling J.A.’s assessment of the complainant’s credibility, and argued that it was not the appellate court’s role to substitute its own credibility assessment when scrutinising a sentence (Sheppard, para 359). Regardless of whether the sentencing judge’s reasons were sufficient, or the possible factual inferences available to the jury, the jury could not have returned a verdict of guilty without accepting some aspects of the complainant’s credibility (Sheppard, para 359). A Court of Appeal is not entitled to substitute its view of a complainant’s credibility simply to impugn the reasons of the trial judge, which is what Wakeling J.A. effectively accomplished (Sheppard, para 361, citing R v HSB, 2008 SCC 52 at para 7 [HSB]).

Further, Wakeling J.A.’s comments about the impact of the assault on the complainant ran contrary to established principles of law and called upon harmful and outdated stereotypes about sexual assault victims (Sheppard, paras 362, 364). The fact that the complainant never accused the appellant of wrongdoing while they were at the school together was not indicative of the seriousness of the assault and the impact on the complainant’s well-being, which was clearly indicated through his victim impact statements (Sheppard, para 362). Further, it is settled in law that there is no inviolable rule on how people who are victims of sexual assault will necessarily behave after the fact (Sheppard, para 364). The fact that the assault involved a breach of trust adds complexity to the relationship, particularly as the appellant used his position as a trusted authority figure to coerce the complainant into sexual activity (Sheppard, para 363). Lastly, with regards to Wakeling J.A.’s discussion of the crime of “sexual violence,” Crighton J.A. pointed out that the SCC has ruled numerous times, including in Friesen, that sexual offences are necessarily offences of violence that can have considerable impacts on victims (Sheppard, para 365). 

Ultimately, Crighton J.A. found that the sentencing judge’s reasons did not give rise to an error in principle that materially affected the sentence. The facts as found by the sentencing judge were supported by the record at trial, and her reasons demonstrated that the sentence imposed was anchored to those facts (Sheppard, para 381). Further, her rejection of pre-Friesen authorities was within her discretion and directly in line with Bertrand Marchand, which states that “courts should depart from dated precedents that do not reflect society’s current awareness of the impact of sexual violence on children.” (Bertrand Marchand, para 47, quoted in Sheppard, para 387). The sentencing judge correctly forefronted the principles of denunciation and deterrence, particularly considering the aggravating circumstances of a breach present in this case (Sheppard,  para 397). Crighton J.A. would have dismissed the appeal.

Analysis

In my view, Crighton J.A.’s disposition is correct, and I believe the SCC will likely rule in her favour. I echo many of her concerns with Wakeling J.A.’s judgment. Wakeling J.A.’s decision to conduct the complainant’s credibility assessment anew was both outside the scope of the ABCA’s role and not required to impose a new sentence. The jury simply could not have returned a guilty verdict on any of the offences without accepting some aspects of the complainant’s evidence and rejecting the appellant’s evidence. Wakeling J.A. was required to also accept the credibility of the complainant, or else the convictions could not stand. Further, appellate courts generally owe significant deference to credibility assessments made at trial (R v Kruk, 2024 SCC 7 at para 82). The sentencing judge also oversaw the trial and observed the complainant’s testimony. If both she and the jury accepted the complainant’s credibility, absent palpable and overriding error, it was not open to Wakeling J.A. to intervene (R v Gagnon, 2006 SCC 17 at para 10). 

Secondly, I do not believe that constructing a sentencing framework as strict as Wakeling J.A.’s is consistent with the inherently discretionary nature of sentencing (R v Lacasse, 2015 SCC 64 at para 1 [Lacasse]). Sentencing is an individualised process to be conducted in light of the specific offender and the specific victim before the court (R v Gladue, 1999 CanLII 679 at para 80). Categorising offences based on perceived severity not only removes consideration of the harms done to the specific victim in a given case, but also binds judges from considering all the circumstances before them in a truly holistic manner. Due to the discretionary nature of sentencing, I do not believe that the bar for appellate intervention was met in this case. 

Further, while the sentencing judge could have been more specific in her language, her reasons (or lack thereof) were not so deficient as to impact materially on the sentence. The sentencing judge did not sentence the appellant for a nonexistent crime. The jury clearly returned verdicts of guilty for at least one instance of sexual interference and invitation to sexual touching, respectively. The sentencing judge’s description of the two crimes and the appellant’s criminal activity generally under the umbrella of sexual violence was not sentencing the appellant for the crime of sexual violence, rather, it described the nature of the offences committed. As Crighton J.A. noted in her decision, sexual offences generally, and especially those committed against children, are inherently violent (Sheppard, para 365). The sentencing judge was clearly aware of the separate offences, as she explicitly sentenced the appellant to two terms of six years’ incarceration on each count, to be served concurrently (Sheppard, para 89). While Wakeling J.A. raises valid concerns about the danger of sentencing an accused for a nonexistent crime, I disagree that this is what occurred.

Third, I take issue with Wakeling J.A.’s comment that there are no aggravating factors in this case. This case involved offences committed by an adult in a position of trust, using that position of trust to gain sexual access to an emotionally vulnerable child. In my view, these are among the most aggravating of circumstances, and to counterbalance them with a crime-free post-offence life significantly diminishes the serious stain on our society that sexual offences committed against children comprise. 

Thus, I believe the SCC will rule in favour of Crighton J.A. With Friesen and Bertrand Marchand, the SCC has been cracking down on sexual offences against children and promoting a turn towards higher sentences. Crighton J.A.’s reasons and ultimate sentence reflect this mindset, and clearly acknowledge the serious aggravating factors in this case and the grave harm caused by sexual offences against children. Further, I doubt the SCC will be willing to endorse a strict sentencing framework such as that proposed by Wakeling J.A. In major sentencing judgements as recent as Lacasse, the SCC has emphasised the importance of giving “wide latitude” to sentencing judges in imposing their final sentence (para 11). Wakeling J.A.’s analytical framework does not accord with this trend and is unlikely to be endorsed by the SCC.