Sexual assault is a crime that rips through the very essence of humanity. This hideous crime is not merely a violation of a person’s being but a defilement of their integrity and self-image. The offender in this senseless act not only violates the victim but also those connected to the victim. Canada has progressed over the years in not only how we conceptualize this act but also how we apply it. We got rid of the term rape and replaced it with sexual assault. Our courts have decided that consent must be ongoing and that the person giving consent must be in a mental state to give consent. Our courts have also decided on issues of marital rape.
Canada has a broad definition of sexual assault. It includes all unwanted sexual activity, such as unwanted sexual grabbing, kissing, and fondling as well as rape.
Sexual activity is only legal when both parties consent. Consent is defined in Canada’s Criminal Code in s. 273.1(1), as the voluntary agreement to engage in the sexual activity in question. The law focuses on what the person was thinking and feeling at the time of sexual activity. Sexual touching is only lawful if the person affirmatively communicated their consent, whether through words or conduct. Silence or passivity does not equal consent.
The Criminal Code of Canada indicates three levels of the sexual assault offense:
Sexual assault level 1 (s.271): An assault is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated. Level 1 involves minor physical injuries or no injuries to the victim.
Sexual assault level 2 (s.272): Sexual assault with a weapon, threats, or causing bodily harm.
Aggravated sexual assault (level 3): Sexual assault that results in wounding, maiming, disfiguring, or endangering the life of the victim.
Matthew McKnight, 33, was accused of sexually assaulting 13 women ranging in age from 17 to 22 from 2010 until 2016, when he worked at Knoxville’s Tavern, in Edmonton.
In January of 2020, a jury convicted McKnight on five of 13 counts after he had pleaded not guilty. Court has heard McKnight met most of the women in bars and assaulted them at his apartment.
Many of his victims remained silent about the attacks for years until the hearing of other victims and going to the police.
According to witness testimony, the victims remembered being extremely drunk and then waking up naked in McKnight’s apartment. McKnight was sentenced to eight years while the crown prosecutor was seeking 22 1/2 years.
Prosecutors have now filed an appeal arguing the eight-year sentence was “demonstrably unfit.”
“The sentence is not proportionate to the moral gravity of the offenses or the moral blameworthiness of the offender,” reads ground of appeal.
“The learned sentencing judge overemphasized mitigating factors and failed to properly consider aggravating factors.”
The appeal also argues that Judge Doreen Sulyma misapplied the totality principle, which aims to avoid imposing unduly long or harsh sentences when multiple prison terms are served consecutively.
The eight-year sentence fell into the range of five to nine years requested by defense lawyer Dino Bottos.
Sentencing is an intricate process. The judge when sentencing an offender looks at the following principles: denunciation, rehabilitation, deterrence, retribution, and public safety. They consider aggravating (elements that increase the culpability and severity of the crime) and mitigating factors (conditions that do not justify or excuse the act but may be considered out of mercy or fairness). The fundamental principle of proportionality is stated in s. 718.1 of the Criminal Code, which provides that a sentence must be “proportionate to the gravity of the offense and the degree of responsibility of the offender”. Crown is arguing that the sentence is not proportional given the moral blameworthiness of the offense. The Alberta Court of Appeal will be reviewing this appeal soon.
The totality principle is a long-standing common law principle. It ‘requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.
According to the Supreme Court of Canada, proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. Both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice. Moreover, if appellate courts intervene without deference to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of the system and the authority of trial courts. So, is 8 years for this despicable crime demonstrably fit? Was the totality principle applied correctly?