R. v. L.M.

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Link to the original Supreme Court decision (May 29, 2008).

Case summary: "The accused was convicted of sexually assaulting his four-year-old daughter and of making, distributing and possessing child pornography." When arrested his computer was found to contain "approximately 5,300 pornographic photographs and 540 pornographic videos," many of the photos involving his daughter, one of her friends, or both. The investigation caught up to him by tracing back ICQ chats and similar Internet channels through which he distributed these photos and videos. He had previously been in trouble with the law for other sexual assaults of minors. The trial judge said he had committed le "pire crime dans les pires circonstances" ("the worst crime in the worst circumstances") and sentenced him to ten years imprisonment for the sexual assault - which is the maximum sentence - extended to a total of 15 by the sentences for the pornography counts (which were to be simultaneous with each other but consecutive to the sexual assault sentence). Finding him to be a high-risk offender and likely to re-offend, she also ordered that he be supervised in the community for ten years. However, the Court of Appeal found that certain facts (in particular, whether sexual penetration had occurred or not) had not been proven, debated whether it really was the worst crime in the worst circumstances and whether that is even an appropriate concept to use in sentencing, and reduced the total sentence from fifteen years to nine years. They also were concerned that the sentence was not consistent with those of others who committed similar crimes. Now the question is whether the decision of the Court of Appeal should stand.

Opinions:

(LeBel, McLachlin, Bastarache, Binnie, Deschamps, Abella, Charron, and Rothstein): Appeals courts should show great deference to the sentencing decisions of trial courts, overturning them only when really serious "reviewable" errors are made. "[T]here was no reviewable error" here and the trial judge's 15-year sentence should stand. Also, we can always imagine a worse crime than any given crime, so maximum sentences cannot be reserved for the worst imaginable crimes or we could never impose them at all. Majority decision.

(Fish): We must show great deference to the decision of the trial judge, but also to that of the appeals court. The parity principle codified in section 718.2(b) of the Criminal Code - that similar crimes should receive similar sentences - must not be ignored. Here, the trial judge's sentence was much more severe than those typically imposed on other similar offenders, failing to consider this mandatory sentencing principle, and that is a "reviewable error," justifying the appeals court's decision.