May 2026 Case of the Month

R v. KB – April 15, 2026

2026 ABCA 118

The Appellant, KB had pled guilty to sexual assault, after penetrating his girlfriend while she was asleep, and was sentenced to 6 months custody followed by 12 months probation. KB was 17 at the time of the offence, and the victim was 15. On appeal, the appellant argued three points: That the sentencing judge had erred in assessing his moral responsibility, that the sentencing judge had inaccurately classified sexual assault as a “violent offence” for the purposes of the Youth Criminal Justice Act (YCJA), and that the sentencing judge had not properly considered the effect of a custodial sentence on KB’s schooling and employment prospects.

The ABCA rejected all three grounds of the appeal, but their consideration of the first two grounds offered helpful clarification regarding appropriate sentencing for young people charged with sexual assault.

Ground 1 – Moral Responsibility of Youth Offenders

In R v Friesen, 2020 SCC 9, the Supreme Court emphasized that sentences for sexual crimes committed against children need to properly recognize both the wrongfulness of the act and the great harm it causes to the victims. KB argued that the sentencing judge’s references to Friesen were not appropriate for a case involving two youths only two years apart in age, and that the sentencing judge had unfairly assessed him to have the moral responsibility of an adult.

The ABCA did not agree that the sentencing judge had inaccurately assessed KB’s moral responsibility, as he had also considered all relevant sections of the YCJA. However, they used this opportunity to clarify that the use of principles from Friesen should be considered on a case-by-case basis, based on the facts of the case at hand. It is appropriate for a sentencing judge to consider the principle that the offences are wrongful interferences with the sexual integrity of a child, and that child victims often suffer a profound harm from these offences. However, it is not always appropriate to consider the offence as exploiting a power dynamic, nor is it appropriate to assume a youth offender would have the same foresight into the harm they are causing. It is also inappropriate to apply Friesen’s encouragement of longer sentences for adults convicted of sexual offences against children to lengthen the sentence of a youth offender.

Ground 2 – Is Sexual Assault a “Violent Offence” under the YCJA?

Under the Youth Criminal Justice Act, there is a presumption that a young person convicted of an offence will not be given an in-custody sentence, unless one of the “gateways to custody” outlined in s. 39 of the act. At issue on this appeal is the sentencing judge’s use of s. 39(1)(a), which allows for a custodial sentence for any youth charged with a “violent offence”, which is defined in the Youth Criminal Justice Act as:

(a) an offence committed by a young person that includes as an element the causing of bodily harm;

(b) an attempt or a threat to commit an offence referred to in paragraph (a); or

(c) an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

The court found that the sentencing judge had erred in applying the (a) definition to include sexual assault, as bodily harm is not a core element of the offence. However, KB’s offence did fall under the (c) definition. In making that determination, the ABCA stressed that whether a given offence “creates a substantial likelihood of causing bodily harm” is to be determined based on the facts of the given case and is not intended to automatically apply or not apply to any crime. A given crime may fall under both (a) and (c) definitions, but it would violate the principles of the YCJA to automatically label any offence under the (c) definition without a fact-specific determination of the likelihood of harm that the offence caused.

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