R. v. L.M. – It’s A Bad Day To Be A Pedophile

The Supreme Court released their decision in R. v. L.M., 2008 SCC 31 last week. The case reaffirms the power of trial judges to issue sentences and strengthens the arguments against revising those sentences. The decision also contains an interesting dissent by Justice Fish on the subject matter. Reading this case requires a dispassionate mind, given the notoriety of the crimes committed (namely the sexual abuse of a minor).

The facts of the case are disturbing to read. L.M. was caught in an international child pornography investigation. Upon his arrest, it became obvious that L.M.’s daughter appeared in some of the pornography, and when questioned, she candidly explained that her father had been abusing her regularly for years.

He was charged with sexual assault, as well as possessing, making and distributing child pornography. L.M pled guilty to the possession and distribution charges, and not guilty on the counts of sexual assault and production of child pornography. L.M. was found guilty on all counts.

Judge Wilhemy of the Court of Quebec gave him the longest sentence possible: ten years for the count of sexual assault, three for possession of child pornography, five for production and five for distribution. She assigned the various pornography sentences concurrently, but consecutive to the sexual assault charge, resulting in a full sentence of fifteen years’ imprisonment. In a separate judgment, she additionally found L.M. to be a long-term offender and ordered a ten-year supervision period upon the end of his prison sentence, which was the maximum she could order. Judge Wilhemy characterized L.M.’s misdeeds as “the worst crime committed in the worst circumstances.”

L.M. appealed this sentence to the Quebec Court of Appeal, arguing that certain facts in the sexual assault charge – most notably the act of penetration – had not been proven and that, therefore, the maximum sentence was unwarranted. The appeal also took special exception to Judge Wilhemy’s characterization of L.M. and since this was not the “worst crime,” that a maximum sentence was potentially unwarranted. The majority of the court agreed and reduced L.M.’s total sentence to nine years. Morin J.A. dissented, suggesting that intervention in the trial judge’s assessment of facts was unnecessary.

The majority of the Supreme Court agreed with Morin J.A., pointing to the precedent set in cases like R. v. Shropshire, 4 SCR 227, where the Supreme Court found that appellate courts cannot modify sentences simply because they would have differently sentenced the convict in question. Lebel J. wrote at para. 15:

Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standard of review to be applied by an appellate court is one based on deference. The sentencing judge has “served on the front lines of our criminal justice system” and possesses unique qualifications in terms of experience and the ability to assess the submissions of the Crown and the offender (M. (C.A.), at para. 91). In sum, in the case at bar, the Court of Appeal was required — for practical reasons, since the trier of fact was in the best position to determine the appropriate sentence for L.M. — to show deference to the sentence imposed by the trial judge.

Justice Lebel’s decision repeatedly emphasizes the prerequisite for judges to have demonstrated unreasonableness in order to modify their sentencing. In other words, courts of appeal must focus on the irrationality of a sentence in order to justify altering the decision of a trial judge. He explains in paras. 24-30 how L.M.’s acts were wholly reprehensible regardless of whether or not penetration could be proven; there was no question that L.M. had repeatedly sexually assaulted and exploited his daughter and that his daughter was mentally scarred as a result. A maximum sentence in these circumstances was by no means unreasonable.

On the other hand, Justice Fish offered a dissenting opinion. At para. 62 he points out:

It is true that Côté J.A. disagreed in her reasons with the trial judge’s finding that the maximum sentence for sexual assault was justified on the “worst offender, worst offence” criterion, but her conclusion ultimately rests on an extensive and detailed review of the sentences… [h]er conclusion that the sentences imposed by the trial judge were unfit rests, ultimately, on its disparity in relation to the other sentences she reviewed.

Justice Fish argues here that Judge Wilhemy’s sentence violated the principle of parity set down in s. 718.2(b) of the Criminal Code, which reads that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” It is an interesting legal argument to make (and, given the subject matter, a fairly brave one for Justice Fish to offer).

However, I think this argument is mistaken simply because comparing L.M.’s sentence to other sexual abuse sentences is a flawed exercise. Crimes of the sort committed by L.M. are thankfully rare and surpass in depravity even the “average” sexual assault perpetrated upon a minor by an adult in a position of trust – not least because L.M. had the arrogance to exploit his own daughter not only for his own sexual gratification, but for the sexual gratification of other similarly depraved individuals, making the abuse of parental responsibility all the more grotesque. For this reason I would suggest that L.M.’s crimes were especially despicable, and thus more worthy of exceptional punishment than the “average” sexual assault.

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