Contemporary sentencing principles apply to historical offences, SCC rules in child sex abuse case
The high court ordered the reincarceration of an Alberta teacher who abused a student in the 1990s
In a unanimous decision, the Supreme Court of Canada ruled that courts must apply contemporary sentencing principles to historical criminal offences, effectively restoring a six-year prison sentence for a boarding school teacher who sexually abused a student in the 1990s.
The SCC acknowledged that the Canadian Charter of Rights and Freedoms bans “retrospective punishment,” which involves retroactively imposing a harsher sentence on offenders than the maximum penalty available when they committed the crime.
However, the SCC said the Charter does not stop courts from retroactively applying contemporary sentencing principles. This includes those set out in the high court’s 2020 landmark decision in R. v. Friesen, which found that courts should impose harsher sentences for sexual crimes against children.
“So long as the sentence imposed does not exceed the maximum penalty at the time of the offence, sentencing judges should base their reasoning on the most accurate and up-to-date understanding of the gravity of the offence,” SCC Chief Justice Richard Wagner and Justice Malcolm Rowe wrote in Friday’s decision in R. v. Sheppard.
“In other words, there is no Charter right to be sentenced from a time machine.”
The case involves Paul Sheppard, a teacher at an all-male boarding school in Alberta in the 1990s. Part of Sheppard’s duties involved punishing students by striking their buttocks with a wooden rod. One of the school’s students accused Sheppard of sexually abusing him while administering corporal punishment during the 1993-94 school year. The student was in seventh grade at the time.
A judge and jury found Sheppard guilty of sexual interference, invitation to sexual touching, and sexual assault, but stayed the conviction for sexual assault. In 2021, a sentencing judge sentenced Sheppard to six years in prison for the other two counts.
However, an Alberta Court of Appeal majority allowed Sheppard to appeal and reduced his sentence to 3 years and 11 months’ prison time. The majority found that the sentencing judge gave insufficient reasons for her factual findings and should have considered pre-Friesen sentencing jurisprudence when determining the appropriate sentence for Sheppard’s decades-old offences.
The Crown appealed to the SCC, and Sheppard filed a motion to bring new evidence in support of his arguments against reincarceration in case the Crown’s appeal succeeded.
The high court granted Sheppard’s motion but restored his original six-year sentence, finding that the Alberta Court of Appeal should not have intervened in the sentencing judge’s ruling since that ruling contained no errors. The SCC said it was clear how the sentencing judge arrived at her findings, and that it would be appropriate to send Sheppard back to prison so that he can serve the rest of his sentence, given the gravity of his offences, “and in particular his pattern of abusing children while in a position of power.”
The SCC also rejected the Alberta Court of Appeal’s conclusion that the sentencing judge did not give enough weight to pre-Friesen jurisprudence. While sentencing judges can take into account “dated case law,” the usefulness of historical decisions depends on their “factual comparability to the case at hand” and “the degree to which relevant legal principles, societal attitudes, and legislative provisions have evolved since the decision was rendered,” the high court said.
“It is safe to assume that historical jurisprudence will not be useful, at least not on its face, when considering offences that are now viewed through a markedly different lens,” the SCC added, noting that its decision in Friesen demonstrated that “society, the common law, and legislation have all undergone significant evolution in their treatment of sexual offences against children.”
The high court added that judges do not need to consider outdated historical precedents.
The correct approach “is to sentence the offender in accordance with the principles and ranges prevailing at the time of sentencing, while respecting the maximum penalty in place at the time of the offence,” the high court said. “Sentencing judges are entitled to consider relevant historical case law in this exercise, though they must do so through the lens of Friesen.”
Marinos noted that 32 years have passed since Sheppard abused the complainant, who was 12 years old at the time.
“With the Sheppard decision, the Supreme Court of Canada has unequivocally found that sexual violence against children is ‘profoundly immoral’ and that the passage of time doesn't lessen the gravity of these crimes,” Marinos said.
“Survivors of sexual violence often feel shame and self-blame, but the shame belongs only to those who violate the physical, psychological, and sexual integrity of these children,” Marinos added. “The aftermath of this violence can take a lifetime to work through, and a judgment can do so much. This is a meaningful and significant step forward.”
An Alberta Crown Prosecution Service spokesperson said the service “appreciates the Supreme Court of Canada’s consideration of this matter.”
Counsel for Sheppard did not respond to a request for comment.
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