L.M: A Hard Case Makes For Bad Sentencing Law
Response or Comment
R c M(L), Sentencing, Sexual Assault, Child Abuse, Child Pornography, Supreme Court of Canada, Critique, Pedophilic Offenders
R. c. M. (L.) was a difficult sentencing case for the judiciary, given its disturbing factual underpinnings of the accused being "convicted of sexually assaulting his daughter and of making, distributing and possessing child pornography." Courts at three levels struggled to arrive at a fit sentence, but the final result still has unsatisfactory implications. The trial judge deliberated a full eight months before sentencing the remanded accused to a global sentence of imprisonment of 15 years (including the maximum penalty of 10 years for the sexual assault) and, also finding that the accused was a long-term offender, ordering supervision for 10 years (again the longest permissible period). The Quebec Court of Appeal allowed the accused's appeal in part, reducing his incarceration to 9 years, while upholding the supervision period. The Supreme Court of Canada restored the original sentence, confirming that it was "lawful and reasonable" while commenting that the trial judge's analysis on the long-term supervision issue "was flawless."
In this comment it is argued that in its decision on this hard case the Supreme Court has arrived at bad sentencing principles in several respects. It has reified the principle of deference to trial judges in sentencing decisions and has unduly restricted the possibility and compass of appellate review. Further, the case provides broad and explicit encouragement for judges to impose maximum sentences, a message which will contribute to the blunting of whatever impetus there may have been to restrain the sanction of imprisonment. L. M. creates an artificial severance between periods of incarceration and community supervision for long-term offenders, which may not inure to maximizing public protection. Finally, the case does not provide the thorough, thoughtful and contemporary guidance needed by judges facing the responsibility of sentencing the pedophilic offender.
H Archibald Kaiser, "L.M: A Hard Case Makes For Bad Sentencing Law" (2008) 56 CR (6th) 323.