1-year Mandatory Minimum for Sexual Interference Struck Down by ONCA
Section 12 of the Charter
provides, “Everyone has the right not to be subjected to any cruel and unusual
treatment or punishment.”
A sentence will violate section
12 where it is grossly disproportionate to a fit punishment in the circumstances.
A sentence is at greater
risk of being grossly disproportionate where the offence captures a wide range
of conduct and circumstances.
See
R v Forcillo, 2018
ONCA 402 (CanLII).
Sexual interference is
such an offence as it captures a broad range of conduct from a touch “to the
worst forms of human degradation.”
R
v Sandercock, 1985 ABCA 218 (CanLII) at para 11.
The issue of the
constitutionality of the mandatory minimum for the indictable offence of sexual
interference (s. 151(a) of the Criminal Code) has recently been
considered by six courts of appeal across the country [FN]:
1.
the
Quebec Court of Appeal in Caron Barrette c. R., 2018 QCCA 516,
46 C.R. (7th) 400;
2.
the Nova Scotia Court of Appeal in R.
v. Hood, 2018 NSCA 18, 409 C.R.R. (2d) 70;
3.
the Manitoba Court of Appeal in R. v.
JED, 2018 MBCA 123, 368 C.C.C. (3d) 212;
4.
the British Columbia Court of Appeal in R.
v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379;
5.
the Alberta Court of Appeal in R. v.
Ford, 2019 ABCA 87, 371 C.C.C. (3d) 250; and
6.
the Court of Appeal for Ontario in R.
v. B.J.T., 2019 ONCA 694 (September 6, 2019).
In all six cases, the
courts found that the one-year mandatory minimum sentence required by s. 151 of
the Criminal Code contravened s. 12 of the Charter, being cruel
and unusual punishment.
Written
by Stuart O’Connell, O’Connell Law Group.
[FN] The section 151
offence allows the Crown to elect to proceed by summary conviction or by
indictment. The current mandatory minimum sentence for the offence when the
Crown proceeds summarily is 90 days. In R. v. Drumonde, 2019 ONSC 1005, Schreck J. struck down the mandatory minimum for the summary conviction offence.
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