The public conflagration of Tom Flanagan’s reputation following his musings about the appropriate punishment for possessing child pornography offers a timely opportunity to reacquaint ourselves with how Canadian courts punish sexual crimes against children. Insofar as the assertion about Flanagan’s initial comment is that it tried to parse a distinction between production and consumption of vile material, how then should we react to criminal court cases where the harm is quite clearly shown–and yet courts hand down indefensibly short sentences for crimes against kids?

When I attended Osgoode Hall back in the 1990s, the snarkier amongst us observed that we were in “law school”, not “justice school”. It was a useful reminder that while lawyers and the legal system use “justice” as an aspirational yardstick, it is a goal actually realized only occasionally.

The decisions of various Canadian courts in a recent case, R v P.M., the sentencing for which took place in 2010 and the appeal of which the Supreme Court of Canada refused to hear in November 2012, give us occasion to reflect on just how regrettably far short of delivering justice our system sometimes falls. This is particularly true when it comes to the commission of violent sexual crimes against children. The decision, handed down by Justice Stephen J. Hunter of the Ontario Court of Justice, is shocking in its leniency, and sobering in the lessons it teaches.

The crimes committed in R v P.M. are best described as horrifying. A father (identified only as “P.M.” to protect the identity of his victim) vaginally and anally raped his thirteen-year old daughter “approximately ten times” over the course of a little more than a year. When his home was searched after a school counsellor learned of the assaults and called the police, police discovered nearly 2,000 images of child pornography on the man’s computer. Included among them were photographs and videos of him raping his daughter. In some of the videos, the victim was heard begging, “Daddy, please stop”. Needless to say, he didn’t.

The man pleaded guilty to sexual assault, incest, sexual interference, making child pornography, possession of child pornography and careless storage of a firearm. He was sentenced to a total of six years imprisonment by Justice Stephen J. Hunter of the Ontario Court of Justice – five years for the rapes and one additional year for the child pornography convictions (a six-month sentence for the weapons offence was ordered to be served concurrently).

The Ontario Court of Justice: six months per child rape

Put differently (i.e., more accurately) P.M. was sentenced to six months for each rape. Of the constellation of offences of which he was convicted, incest alone carries a maximum punishment under our Criminal Code of fourteen years per offence. Whoever he was, P.M. received the benefit of the courts’ bizarre penchant for awarding bulk discounts for the commission of multiple crimes.

Ontario courts have consistently held that rape of a child by a parent is appropriately punished by a sentence of only three to five years imprisonment. In order to be sanctioned by more significant periods of incarceration, simply raping a child isn’t enough: Ontario appellate courts have generally required additional aggravating circumstances in order to exceed the five-year barrier.

Thus, in order to receive mid-to upper-single digit year penitentiary terms, the rapes must occur “on a regular and persistent basis over substantial periods of time”. Longer sentences, measured in years in the upper single-digits to low double digits, are only warranted where the sexual intercourse has been accompanied by “physical violence, threats of physical violence, or other forms of extortion”.

Even more severe sentences will only be imposed where there has been “a pattern of severe psychological, emotional and physical brutalization”.

In other words, Ontario courts want to make sure that victims have really suffered before they are prepared to drop the hammer on a parent who rapes their child. (A full discussion of sentencing practices by Ontario courts can be found in R. v P.M. 2012 ONCA 162 at paras. 43ff.  See also the extensive analysis in R. v Foley, 2013 ONCJ 26.)

Even against the backdrop of the generalized leniency of Canadian sentences as compared to the range of punishments available pursuant to the Criminal Code, the sentence in P.M. was disturbingly low.

The Ontario Court of Appeal: “Lenient” But Not “Inadequate”

Newspaper editorial boards such as that of the Globe and Mail condemned the decision. The Crown appealed the sentence, but a majority of the Ontario Court of Appeal, comprised of Justices Rosenberg and MacPherson, was not of the view that the sentence warranted modification. They thought six years in total was “lenient”. They even thought that the concurrent one year sentences for possession and creation of child pornography was “extremely lenient”. However, in a bit of analytical jiu jitsu, they held that the aggregate sentence was not “clearly inadequate”,  and so they refrained from altering it.

Justice Epstein, the dissenting judge on appeal, thought the sentence should have been increased to nine years’ imprisonment. The Supreme Court of Canada refused to hear a further Crown appeal of the sentence.

In its way, R v PM is instructive because it demonstrates yet again that Canadian courts are congenitally lenient when it comes to the punishment of child sexual assault cases, and that appellate courts cannot always be counted on to correct lenient sentences (lenient, that is, as described by the courts themselves) handed down by trial judges.

“Six Years” Does Not Equal “Six Years”

Of course, in the case of P.M., to talk of a sentence of incarceration for “six years” is itself to promulgate a fiction: because of an institutional orientation in favour of ensuring that convicted criminals spend as little time as possible actually incarcerated, a sentence of “six years imprisonment” will mean nothing close to six actual years spent in prison.

After approximately one-third of his sentence (i.e., two years), P.M. will be eligible for (and is virtually guaranteed to receive) a variety of “temporary absence” and “day parole” treatments. After two-thirds of his sentence (i.e., four years) he will be entitled to “statutory release” under the Corrections and Conditional Release Act and will serve the remainder of his sentence “in the community”. (And this entire analysis ignores the fact that because P.M. committed his crimes before the passage of the Truth in Sentencing Act, he was given a “two for one” credit for the eleven months he spent in custody prior to trial.)

In short, for having terrorized and raped his daughter ten times over the course of slightly more than a year, for having videotaped and photographed those grotesque assaults for his later viewing pleasure, for having possessed hundreds of other images of violent child pornography, P.M. will spend significantly less than five years in prison.

The decisions of the various courts in R v P.M. are law. But they should not be mistaken for justice.

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Bob Tarantino is a lawyer in Toronto.