Ontario Court of Appeal decision based on ‘blind acceptance of a questionable assertion’

By John L. Hill

Law360 Canada (May 18, 2023, 2:25 PM EDT) --
John L. Hill
John L. Hill
In 1997 and again in 2007, professor and constitutional law scholar Peter Hogg wrote about the benefits of the dialogue between Canadian courts and legislatures. The assumption was that our courts and legislatures are attempting to ensure that current societal values are mirrored through legislation and the court’s interpretation of the law. However, the recent Ontario Court of Appeal decision in R. v. B.M. 2023 ONCA 224 shows no nuanced discussion of Parliament’s intention; rather there is simply blind acceptance of a questionable assertion.

The facts of the case are disturbing: B.M. was an 18-year-old refugee from the Congo who came to Canada when he was befriended by the father of I.A. and M.K. B.M. and the father had a sexual relationship. B.M. also groomed the children who at the time were six years younger and over an almost four-year period had anal intercourse with the boy and vaginal intercourse with the girl.

The sexual assaults were reported to police when the children’s mother became aware of the situation. It took a long time to come to trial but eventually B.M. pleaded guilty. The trial judge took into consideration that B.M. had been diagnosed with a schizoaffective disorder made worse by alcohol and drug abuse. A prison sentence would likely result in D.M.’s deportation back to an African country where his homosexuality would not be accepted. The trial judge felt it unlikely that prison would afford B.M. appropriate psychiatric or psychological counselling. The sentence imposed was a conditional sentence of two years less a day. The Crown appealed.

In a unanimous judgment of a three-judge panel of the Ontario Court of Appeal, the sentence was quashed and a penitentiary term of seven years was imposed. The bulk of the judgment seems to chastise the trial judge for seemingly ignoring Parliament’s intention, set out in s. 718.01 of the Criminal Code, that in child abuse cases denunciation and deterrence should be primary. The judgment states that “at no point do the reasons reflect an understanding of the statutory and common law sentencing principles …” set out in R. v. Friesen, 2020 SCC 9 that tells us that primary consideration in sentencing on child abuse cases is to be given to the principles of denunciation and deterrence.

This would have been an excellent opportunity for an appellate court to have started a conversation with Parliament on the value of deterrence in curbing crime. The value of deterrence has been questioned extensively. “Deterrence is very largely an article of faith,” says University of New South Wales law emeritus professor David Brown. “I call it sentencing’s dirty secret because it’s just assumed that there is deterrence … but what the research shows is that the system has little to no deterrent effect.” Brown explains: “A large number of crimes are what we call expressive crimes — that is, they are affected by anger, rage, depression, drug or alcohol use, indicators of psychological disturbances,” he says. “So people are not turning their mind in a rational, calculating way, using cost benefit of whether the punishment outweighs the benefit.”

Professor Brown’s assessment could have been applied to B.M. and perhaps the reason he acted out in such an unacceptable way could have been taken into consideration to formulate a sentence that would have diminished the likelihood that this offender would repeat his ways in future. But the court preferred the sledgehammer to the scalpel.

Instead of using the facts in this case for the court to signal that instead of the inclusion of denunciation and deterrence as prime factors for consideration in determining sentencing, public safety would be better served by rehabilitation. The appellate court seemed to accept that the Correctional Service of Canada could provide the treatment B.M. required. There is absolutely nothing before the court establishing the need for seven years in prison. The Crown had indicated a four-year term would be acceptable.

None of that analysis took place. Perhaps it is simply because the court and Parliament are in sync that child abuse is horrific and, research be damned, we in this country will not put up with it. Yet one has to wonder if the money that will be expended on long-term incarceration of this offender could have been better directed to counselling for the trauma the children experienced.

So, despite the claims of Hogg that society is well served by a conversation going on between the courts and the legislatures, sometimes both institutions agree that there is no need for talking, just an expression of rage.

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 johnlornehill@hotmail.com.

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