Alberta sex assault case illustrates why laws must change with times

By John L. Hill

Law360 Canada (March 27, 2023, 1:07 PM EDT) --
John Hill
John L. Hill
Justice can be defined as the authoritative imposition of society’s norms. Such norms change over time. What once was considered a crime, such as using cannabis, is now legal. Public attitudes change and so must our laws.

The way our courts stay tuned to societal norms is by imposing and sometimes updating sentencing guidelines. As public attitudes change, what once was considered a harsh punishment may be treated more leniently. Similarly, illegal activity once considered minor may now be dealt with more harshly.

The recently decided case of R. v. Quintero-Galvez 2023 ABCA 64, and the memorandum of judgment of Justice Thomas W. Wakeling gives us insight on how sentencing guidelines were developed and how they may change over time.

Yeider Quintero-Gelvez appealed his sentence of 4.5 years for sexual assault. Quintero-Galvez and a male friend participated in getting a female acquaintance drunk and when she fell hitting her head on a bathtub and went unconscious, Quintero-Galvez and his buddy stripped the woman and positioned her on a bed. She recovered consciousness to find Quintero-Galvez holding her down while the friend penetrated her. The woman escaped with minimal clothing, leaving the rest of her clothes and belongings behind and summoned police. The majority of the three-judge panel agreed the trial judge had imposed a standard consistent with guidelines set out in case law. Quintero-Gelvez, who was 21 years old at the time of the offence had no criminal record and did not engage in sexually molesting the 22-year-old victim felt he did not deserve harsh punishment. The trial judge in imposing sentence considered that parity required him to use three years as a starting point for a major sexual assault.

This was established in R. v. Arcand 2010 ABCA 363. Not so, the appellant maintained. The Supreme Court of Canada established in R. v. Parranto 2021 SCC 46 that from time to time it may be necessary to adapt the quantitative guidance case law provides to bring sentencing into harmony with a contemporary understanding of the gravity of the offence or to respond to societal and legislative changes. The majority agreed that sexual assault is a crime where the gravity of the offence as experienced by the (in most cases female) complainant causes incredible emotional and mental suffering and disparages our growing concern for equality for all. The 4.5-year sentence was not demonstrably unfit and was reaffirmed by the Alberta Court of Appeal.

A more interesting insight into judicial reasoning was provided by Justice Wakeling in the judgment. Although he agreed to allow the 4.5-year sentence, he saw it as too lenient rather than too harsh. He would have imposed a 7.5-year sentence.

The importance of the judgment for legal practitioners across Canada is not the disposition of the appeal or the sentence ultimately imposed. The judgment, especially in the lengthy reasons of Justice Wakeling give us tremendous insight into how sentencing guidelines are developed and how they are changed. He notes that the English Court of Appeal produced its first guideline judgment roughly 43 years ago. Since that time many countries have adopted structured sentencing regimes and appointed sentencing commissions. In Canada, it is our courts that from time to time establish or alter guideline sentencing judgments.

The judgment goes on to state that Canadian appeal courts must issue guideline sentencing judgments to assist trial judges in imposing sentences. These guidelines provide sentencers with a rational analytical framework that introduces a “common methodology” and consistent sentencing patterns. Without a standard of what to expect from our courts in terms of a likely sentence to be imposed, public confidence in the administration of justice would erode.

Justice Wakeling is probably well-suited to deliver this commentary. He states he has written at least 10 judgments that serve as guideline judgments as well as working with sentencing commissions around the world.

By careful analysis of guideline judgments, we can strive to identify how closely the aspects addressed in the judgment conform to modern concepts of the customs, norms and mores accepted in our community. Where, as in Quintero-Gelvez’s situation, there is a heightened awareness of the long-term harm done to victims of sexual assault, existing guideline judgments may be too lenient.

We should not think of guideline judgments as straitjackets. Changing times and changing circumstances allow legal counsel to adapt submissions on sentencing beyond recounting mitigating and aggravating factors. As stated in the judgment, “Guideline judgments are a mechanism for sentencing discretion, rather than restricting discretion.”

When we can say that the punishment meted out for various crimes is in accordance with the shared values we hold in society, we can say justice was served.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the authors firm, its clients, Law 360Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.  

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