Historical sex abuse case should have been judged 'in the light of 1970s attitudes,' B.C. appeal argues

Warning: This article contains details about the sexual abuse of a child.

A B.C. man convicted of historical sex crimes has lost an appeal, with the court rejecting the argument that he should have been sentenced "in the light of 1970s attitudes and circumstances regarding sexual offences against children."

The B.C. Court of Appeal ruled on the case Friday, upholding a four-year prison sentence for a man referred to only by the initials R.O. A publication ban is in place in the case to protect the identity of the victim in the case, referred to by the initials M.L.

The court heard that the sexual abuse occurred between 1974 and 1977, beginning when M.L. was seven years old. R.O was in his early 20s. The assaults, according to the court, "escalated" over time from unwanted touching to forced penetration.

"M.L.’s life has been forever and profoundly altered by the assaults. Briefly, the trauma for him has been devastating," the court decision says.

In 2021 R.O was found guilty, his appeal of the conviction was dismissed the following year.

Appealing his sentence, R.O. was arguing that the judge made a legal error by relying on current case law when deciding on a fit sentence and was asking the court to reduce his sentence from four years to two.

"He says that the recent 'upward shift' in sentencing severity for sexual offences against children should not apply to historical offences such as his," the court decision says, noting that the maximum penalties in cases of sexual offences against children were increased in 2015.

The argument for a reduced sentence was based on the principal of parity, the court heard, which dictates that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstance."

In this case, R.O's lawyer argued, the judge had made an error by not considering “social, moral and legal circumstances at the time of offending.”

In support of that argument, decisions in seven cases between 1979 and 1987 were provided as evidence supporting a sentence of two years.

The Crown, for its part, argued that "even when legislative changes have occurred after historical offences, they can be considered as a reflection of society’s deepened understanding of the gravity and harmfulness of the offences," according to the decision.

At the time the abuse occurred, the crime of "indecent assault against a male" carried a maximum sentence of 10 years in prison, the appellate court noted. While it would have been a clear legal error and a violation of the Charter of Rights and Freedoms to impose a more severe sentence, the court found that the trial judge did not make a mistake in using more recent case law to arrive at R.O's sentence.

"The cases cited by R.O. from the 1970s and 1980s are of no assistance to him as they do not reflect the range of sentences that accord with society’s understanding today of the gravity of the offences he committed," the decision said.

"I note that, by their very nature, cases of historical sexual offences against children often involve an adult coming forward about abuse they suffered as a child that was not disclosed at the time of the offences. This is likely due, in part, to the moral, social and legal landscape at the time, which silenced or failed to support survivors of sexual violence in a way that our society is striving to change today."