Sentencing decision following convictions for two counts of incest and one count of sexual assault arising from repeated sibling sexual abuse, including conduct when the complainant was under 16.
The offender, though chronologically an adult, had accepted expert evidence establishing an intellectual disability and cognitive functioning equivalent to a child between 9 and 12, which materially reduced moral blameworthiness and made penitentiary custody uniquely harsh.
The court held that the Supreme Court’s decision in I.M. did not require prosecution or sentencing under the YCJA, but did require the offender’s developmental limitations to be fully reflected in proportional sentencing under the Criminal Code.
Applying the modern s. 12 framework from Hills and Senneville, the court found the five-year mandatory minimum in s. 155(2) for incest with a complainant under 16 grossly disproportionate both as applied and in a reasonably foreseeable scenario, declared it of no force and effect, and imposed a conditional sentence of two years less a day followed by three years’ probation.
