The Role for Defence Counsel to Ensure Judges Consider the Best Interests of the Child When Sentencing a Parent

Children can be the direct victims of crimes committed by one or both of their parents. They may suffer physical assault, in the most extreme cases leading to death; sexual offences including assaults, invitations to sexual touching and child pornography; or neglect or abandonment that are serious enough to amount to a criminal offence. Children can also be victims when witnessing crimes committed by one of their parents, for example the physical abuse of an intimate partner, often the other parent, or stepparent of the child. Such direct victimization of children significantly increases the seriousness with which a judge will view the offence. In fact, sections 718.2(a)(ii), (ii.1) and (iii) of the Criminal Code deem the abuse of a person under 18 or a family member, and/or the abuse of a position of trust or authority in relation to the victim, aggravating factors for sentencing.

In addition, children are frequently indirect victims when one or both of their parents, or care givers, commit crimes and are sentenced. This paper will consider the extent to which courts are able to consider the effects on dependent children when sentencing offenders. The focus here is where a child is the indirect victim of a parent’s criminal conduct, for example where a mother is being sentenced for fraud, or a father for a drug offence, both of which are likely to lead to a period of incarceration, not those cases where a child is the direct victim of a parent’s criminal conduct.

It is argued that statutory and common law sentencing principles, analyzed in conformity with Canada’s international legal obligations, require courts to meaningfully consider the best interests of children when sentencing a parent. Consequently, it is incumbent on defence counsel to ensure that a judge is fully informed about the effects of any sentence on a dependent child.

DOCUMENTS (1)

View Document