In a landmark decision, the Supreme Court of Canada has sent a clear message: when it comes to sentencing, the clock is set to today. In R. v. Sheppard, the nation’s highest court unanimously ruled that individuals convicted of historical crimes must be sentenced according to contemporary legal principles and societal values, not the standards in place when the offence was committed.
This decision has profound implications for anyone facing charges for offences that occurred years or even decades ago, particularly in cases of historical sexual assault. It affirms that our justice system’s understanding of harm evolves, and sentencing practices must evolve with it. This blog post breaks down the Sheppard decision and explains its implications for criminal law in Canada.
The Case at a Glance: The Facts of R. v. Sheppard
The accused in Sheppard was a former teacher at an all-boys boarding school in Alberta. In the early 1990s, he sexually abused one of his grade 7 students. Over two decades later, the complainant came forward, and after a jury trial, the accused was convicted of sexual interference and invitation to sexual touching.
The sentencing judge, after hearing the evidence, found that the accused had committed approximately 10 separate acts of sexual abuse. Citing the profound breach of trust and the lasting harm to the victim, she imposed a sentence of six years in prison.
However, the Alberta Court of Appeal disagreed. A majority of the appeal judges reduced the sentence significantly to just under four years. They reasoned that the sentencing judge had made two key errors:
- She did not provide adequate reasons for her factual findings.
- She failed to properly consider the much lower sentences that were common for similar crimes back in the 1990s.
The Crown appealed this reduction to the Supreme Court of Canada, which ultimately sided with the original sentencing judge and restored the six-year sentence. The Court’s reasons for doing so clarify some of the most fundamental questions in Canadian sentencing law.
How Do We Sentence Crimes from Decades Ago?
The central issue in Sheppard was whether a sentence should reflect the era of the crime or the era of the conviction. To answer this, the Supreme Court focused on two cornerstone principles of sentencing found in the Criminal Code: proportionality and parity.
Proportionality
Section 718.1 of the Criminal Code states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In simple terms, the punishment must fit the crime.
Parity
This principle holds that similar offenders who commit similar offences in similar circumstances should receive similar sentences.
The defence in Sheppard argued that parity required the court to look at sentences from the 1990s. The Supreme Court soundly rejected this argument. It clarified that parity is an “expression of proportionality,” not the other way around. The goal is to achieve consistency with other proportionate sentences, not to repeat outdated sentences that are now understood to be disproportionately low.
The Court’s key finding was that proportionality must be assessed based on society’s current understanding of a crime’s seriousness. Chief Justice Wagner, writing for a unanimous court, explained that as society’s appreciation of the harm caused by certain criminal acts evolves, so too must the sentences. For crimes like sexual violence against children, our collective understanding of the deep and lasting psychological trauma has grown immensely since the 1990s. A sentence that might have seemed “normal” then is now recognized as woefully inadequate.
Therefore, the sentencing judge was correct to apply the sentencing standards of 2025, rather than those of 1993.
Raising the Bar for Child Sex Abuse Sentences
The Sheppard decision builds directly on another crucial Supreme Court case: R. v. Friesen. In Friesen, the Court recognized that historical sentences for sexual offences against children were often “disproportionately lenient” because they were rooted in historical myths and misconceptions about the nature of these crimes.
Friesen was a call to action for Canadian courts. It directed them to impose stricter sentences for these offences to reflect their true gravity and to denounce the conduct in the strongest possible terms. The Court stated plainly that “sentences for sexual offences against children must increase” and that judges were justified in departing from older, lower precedents.
What Sheppard does is unequivocally confirm that the principles from Friesen apply retrospectively. Even though the accused’s crimes were committed long before the Friesen decision, he was not entitled to the benefit of the outdated and lenient sentencing standards of that era. The sentencing judge’s job was to impose a sentence that was fit and proportionate.
Old Maximums, New Principles: Navigating the Charter
This raises an important question: Doesn’t this violate the constitutional protection against retroactive punishment? Section 11(i) of the Canadian Charter of Rights and Freedoms gives an accused person the right to the benefit of the lesser punishment if the law changes between the time of the offence and the time of sentencing.
The Supreme Court in Sheppard clarified a critical distinction. The protection in s. 11(i) applies to the maximum punishment fixed by Parliament. For example, when the accused committed his crimes, the maximum sentence for sexual interference was 10 years. In 2015, Parliament increased it to 14 years. Because of the Charter, the accused could not be sentenced to more than the 10-year maximum that was in place in the 1990s. His six-year sentence was well within this limit.
However, s. 11(i) does not prevent judges from applying evolved sentencing principles or updated common law sentencing ranges. Sentencing ranges are guidelines developed by courts; they are not fixed punishments set by Parliament. As society’s understanding of an offence’s gravity deepens, judges are free (and indeed, obligated) to impose sentences that reflect that modern understanding, as long as they stay within the statutory maximum from the time of the offence.
Put another way: The legal “ceiling” for the punishment is fixed to the past, but how close a sentence gets to that ceiling is determined by the values of the present.
The Role of a Sentencing Judge’s Reasons
The Sheppard decision also serves as a powerful reminder of the deference appeal courts must show to sentencing judges. As the Supreme Court noted in R. v. Lacasse, sentencing is a difficult, discretionary, and highly contextual exercise. The trial judge is in the best position to assess the evidence, the credibility of witnesses, and the specific circumstances of the case.
For this reason, an appeal court cannot simply substitute its own opinion. It can only intervene if the sentencing judge made a clear “error in principle” (like ignoring a relevant factor) or if the sentence is “demonstrably unfit.”
In Sheppard, the Supreme Court criticized the Alberta Court of Appeal for engaging in a “fine parsing” of the sentencing judge’s reasons to find fault. The majority appeal judges had questioned the judge’s reliance on the complainant’s testimony, raising issues that the Supreme Court said engaged “discredited myths and stereotypes,” such as the fact that the victim had sought therapy. The Supreme Court was firm: these outdated ideas have no place in a modern justice system.
A judge’s reasons do not need to be perfect or spell out every single thought process. As long as they are read in the context of the whole trial and it is clear why the judge reached their conclusion, the reasons are sufficient.
Key Takeaways from R. v. Sheppard
The Supreme Court of Canada’s decision in Sheppard is a critical development in criminal sentencing law. For individuals facing charges, especially for historical offences, the key takeaways are:
An accused will be sentenced by today’s standards
The law is not frozen in time. A court will assess the gravity of an alleged offence based on current societal values and legal principles, not those of the past.
Parity with old cases is not a winning argument
You cannot expect to receive a lenient sentence simply because that was the norm decades ago, especially if those norms have since been rejected as unfit.
The principles from R. v. Friesen have broad reach
For any sexual offence involving a child, courts are now mandated to impose sentences that are significantly higher than historical averages to properly denounce the conduct and reflect the severe harm caused.
Sentencing judges have significant discretion
A judge’s findings of fact at a sentencing hearing are powerful and will be difficult to overturn on appeal.
This ruling reinforces that the primary goal of sentencing is to impose a just sanction that reflects a contemporary understanding of a crime’s impact. In Sheppard, the Supreme Court has affirmed that while a crime may be rooted in the past, the delivery of justice must always live in the present.
Contact Barrison & Manitius in Oshawa for Modern Criminal Defence Services
If you are facing allegations involving historical offences, it is essential to understand how modern sentencing principles may shape the outcome of your case. At Barrison & Manitius, our team of criminal defence lawyers provides clear, strategic guidance grounded in current criminal law and decades of courtroom experience. Contact us online or call 905-404-1947 for a confidential consultation to discuss your rights, your options, and the steps you can take to protect your future.