Prolonged Sexual Abuse of Children: The R. v. D. (D.) Sentencing Range

In its 2002 decision, the Court of Appeal for Ontario substantially raised the sentences imposed on adults who sexually assault children on multiple occasions.

In R. v. D. (D.), 2002 CanLII 44915 (ONCA), the Court of Appeal for Ontario held that adult offenders in a position of trust who sexually abuse children on a regular and persistent basis over substantial periods of time can expect to receive mid to upper single digit penitentiary terms. 

In that case, the offender had been convicted of eleven sexual offences involving four boys as a result of conduct spanning seven years. The appeal court upheld the nine-year sentence imposed by the trial judge, noting that this sentence fell at the lower end of the appropriate range. 

Since that time, R. v. D. (D.) (sometimes referred to by lawyers as “Double D”) has become a jurisprudential touchstone for Ontario courts sentencing adults who have repeatedly sexually abused children.

Some points to keep in mind:

·       While R. v. D. (D.) articulates the relevant principles for sentencing adults who sexually abuse children, it was not intended to and does not operate as a cap on sentences. More egregious circumstances might require sentences well beyond the R. v. D. (D.) range.

See R. v. Stuckless, 2019 ONCA 504.

·     In prescribing this new range of sentences, R. v. D. (D.) did not specifically overrule other cases where lower ranges had been identified for cases of adult sexual assault on children with different facts.

See for instance, R. v. G. (A.), 2004 CanLII 36065 (ON CA);

See also R. v. D.M., 2012 ONCA 520 (CanLII), at para. 29.

·       Sentencing "ranges" are useful in promoting the "parity" principle because they provide guidelines to trial judges for the imposition of similar penalties for similar offences of a similar nature involving similar offenders.  It is important to keep in mind that they are nothing more than guidelines and are not conclusive of the appropriate sentence in any given case. Each sentencing must be conducted as an individualized exercise.  

R. v. Wright, 2006 CanLII 40975 (ON CA), at para. 16;

R. v. D. (D.) (2002), 2002 CanLII 44915 (ON CA), at para. 33: “…[T]he ranges which I have identified are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.”

·   In the determination of a fit sentence for cases involving the sexual abuse of children, absent exceptional circumstances, denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.

R. v. D.D., supra at paras 34-6;

See also section 718.01 of Criminal Code: “When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.”

Therefore, the accused's background and his efforts at rehabilitation after his trial are accorded lesser weight in determining the appropriate sentence.

See R. v. D.M., 2012 ONCA 520 (CanLII);

But see R. v. G. (A.), 2004 CanLII 36065 (ON CA), [2004] O.J. No. 4563, 191 O.A.C. 386 (C.A.), where accused’s rehabilitation over a twenty-year period was relevant to the court’s imposing a sentence below the R. v. D. (D.)  sentence range.

The principle of denunciation weighs particularly heavily in cases of offences perpetrated against children by adults in positions of trust:  R. v. L.F.W., 2000 SCC 6 (CanLII), per L'Heureux-Dube, at para. 29. 

·       The global sentence of five or six years in the penitentiary that R. v. D. (D.) and other case law establishes as a minimum is for cases which involve the following: [FN1]

o   repeated sexual abuse over a prolonged period;

o   including vaginal or anal intercourse (or attempted intercourse);

o   of multiple children,

o   by an adult in loco parentis to a child (or, at least, in a significant position of trust),

o   who (typically) does not receive the benefit of a guilty plea.

Recent case law, however, suggests a shift away from requiring something more than digital penetration or fellatio in order to fall within the R. v. D. (D.) range.  As the Court of Appeal noted this week, fellatio and digital penetration are not lesser forms of sexual abuse than intercourse.

See R. v. Stuckless, 2019 ONCA 504, at para. 67.

Sexual intercourse should be treated as an aggravating factor on sentence, not a prerequisite to the application of the R. v. D(D) range.

See R. v. Stuckless, at para. 68: “Where intercourse occurs, it is simply one factor among many to be used to determine a fit sentence. Intercourse is an aggravating factor that leads to an increased sentence, the absence of an aggravating factor does not translate into a mitigating factor.”

·       Where the sexual abuse includes full intercourse and is accompanied by other physical violence, threats of physical violence or extortion, an upper single digit to low double digit penitentiary term is appropriate; and where these elements are accompanied by severe psychological, emotional and physical brutality, an even higher penitentiary term may be required.

Case	Offences	Sentence	Position of trust	Number and ages of victims	Period of time	intercourse	Guilty plea	Notes
R. v. D. (D.), 2002 CanLII 44915 (ON CA	11 sexual offences	9 year and 1 month global sentence	Yes. Close and trusted family friend (in three cases); in fourth, he assumed a role akin to a stepfather.	4 boys ages 4-8	Several years	Yes. all manner of sexual activity, including attempted or successful anal intercourse	No.	When necessary, offender used violence and threats to compel compliance, including holding one victim over balcony of 30th-floor apartment. Minor criminal record.
R. v. Stuckless, 2019 ONCA 504	102 sexual offences	10 years global sentence.	Yes. Coach and assistant teacher.	18 young boys	Over 2o years	No. However, sexual touching, masturbation, fellatio, digital penetration, etc.	Yes, to all but two of the charges. .	Absent guilty plea and rehabilitation, lengthier sentence would be warranted. Significant prior criminal record for similar offences (see R. v. Stuckless, 1998 CanLII 7143 (ONCA).  A sustained and profound impact on victims, eg. suicide, drug overdose, etc.
R. v. A. G., 2004 CanLII 36065 (ON CA	attempted rape and indecent assault.	Sentence reduced to 2 years imprisonment.	Yes. Uncle who while certainly in a position of trust, did not stand in loco parentis to the complainant.	1 girl, 12-13 years old.	committed over a relatively short time.	No. Attempted rape, sexual touching,masturbation, digital penetration,	No.	Historic sexual offences, offender in frail health, substantial steps to rehabilitate..
R. v. D.M., 2012 ONCA 520 (CanLII) R. v.	Sexual assault, sexual exploitation, and invitation to sexual touching.	7 years (increased from 3 years for sexual assault and one year concurrent for each of the other offences).	Yes, Uncle. Complainant was an immigrant to Canada and totally dependent on the respondent and his wife.	1 girl, beginning when 15 years old.	Abuse over three years	Frequent acts of sexual intercourse: 124 times.	No.	Threats of deportation if complainant revealed the abuse.  The accused had no criminal record. Complete lack of remorse or any understanding of the gravity and extent of the wrongdoing.
R. v. R.B., 2005 CanLII 30693 (ON CA),  leave to appeal dismissed.	Ten-count indictment.	Global sentence of 7.5 years. (reduced from 10 years)	Yes. Ran foster home from adolescent boys. Boys in appellant’s care.	4 boys, 12-18 years	Between 1983 and 1991.	Yes. The sexual abuse included genital fondling, masturbation, and for two of the boys, anal intercourse.	No.	Unlike D.(D), no use physical violence, threats of physical violence or extortion. No criminal record. Victims in D. (D.) were much younger,and the abuse to which they were subjected was more frequent and more pervasive.

[FN1] R. v. D.M., 2012 ONCA 520 (CanLII): “Where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary.”  R. v. D.(D), at para. 32.  “Cases like the present one however, which involve repeated acts of anal intercourse and attempted anal intercourse, as well as the use of other physical violence, threats of physical violence and extortion, are in a different category. Such cases, in my view, call for a higher range of penalty because of the enhanced gravity and seriousness of the crimes and the greater degree of moral culpability attributable to the offender. As a general rule, I believe that upper single digit to low double digit penitentiary terms are called for in these circumstances.”

Written by Stuart O’Connell, O’Connell Law Group. (All rights reserved to author).