Mr. Merrick was in his mid 60’s when he fondled the genitalia of a 10 year old boy he babysat. He did this “countless” times to the boy over the following four years. He was caught and pleaded guilty to a single count of touching a person under 14 for a sexual purpose (s. 151(a) of the Criminal Code). He appealed his 5 ½ year sentence arguing that his actions did not constitute a “major sexual assault.” The Alberta Court of Appeal didn’t buy the argument: 2012 ABCA 319.
Earlier this year, the Ontario Court of Appeal also grappled with sentencing in child sexual assault cases but in a case where there could be no argument about whether the offender’s actions constituted a “major sexual assault.” Over a three year period, on a near daily basis, Mr. D.M. sexually abused his 15 year old niece who was completely dependent on him. The abuse started as sexual touching and culminated in sexual intercourse 2-3 times per week. The trial judge found that the mitigating factors put the appropriate sentence at the low end of the range and sentenced Mr. D.M. to 3 years. The Ontario Court of Appeal found that sentence to be manifestly unfit and sentenced him to 7 years, the sentence sought by the Crown at trial: 2012 ONCA 520.