Samantha Herbert

The defendant, M.W., pleaded guilty to sexual assault of a semi-conscious and vulnerable victim.

The court considered sentencing principles, aggravating factors (victim's vulnerability, non-consensual sexual acts), and mitigating factors (guilty plea).

The judge determined an appropriate sentence of 18 months imprisonment, but applied credits for 181 days of pre-sentence custody (9 months equivalent), an additional 3 months for harsh conditions at Central East Correctional Centre (Duncan credit), and a further 3-month reduction due to the ongoing COVID-19 pandemic's impact on incarceration conditions.

The net sentence was 3 months, to be served intermittently on weekends, along with 2 years probation and ancillary orders including a weapons prohibition, DNA order, and Sex Offender Information Registration Act compliance.

The Superior Court of Justice considered a constitutional challenge to mandatory minimum sentences under ss. 286.2(2) (receiving material benefit from sexual services provided by a person under 18), 286.3(2) (procuring a person under 18), and 163.1(3) (distributing child pornography) of the Criminal Code.

The applicants, who were found guilty by a jury, argued these mandatory minimums violated s. 12 of the Canadian Charter of Rights and Freedoms.

The court, applying the "grossly disproportionate" standard and considering reasonable hypotheticals, found the mandatory minimums for ss. 286.2(2) and 163.1(3) to be unconstitutional and declared them of no force or effect.

The mandatory minimum for s. 286.3(2) had already been declared unconstitutional in a prior decision.

Following their convictions for various prostitution-related offences involving minors, the applicants sought a declaration that sections 286.2(2), 286.3(2), and 286.4 of the Criminal Code were unconstitutional, arguing they violated sections 7 and 2(b) of the Canadian Charter of Rights and Freedoms.

The court dismissed the application, finding the impugned sections constitutional.

It held that the sections were not arbitrary, overbroad, or grossly disproportionate under s. 7, and that while s. 286.4 infringed s. 2(b) freedom of expression, it was justified under s. 1 of the Charter.

This sentencing decision followed jury convictions arising from the sexual exploitation of a 16-year-old through online advertisements, hotel-based sex work, and related financial benefit offences.

The court held that denunciation and deterrence were the primary sentencing objectives under the Criminal Code where the offences involved abuse of a person under 18, while still recognizing rehabilitation as relevant given the offenders' youth.

Applying the sentencing fact-finding principles governing mixed jury verdicts, the court concluded that some violence described by the victim could be accepted despite acquittals on trafficking and certain other counts, but not conduct underlying specific acquittals.

The court also addressed the constitutionality of mandatory minimum penalties and imposed individualized custodial sentences, pre-sentence custody credits, probation for one offender, and ancillary DNA, firearms prohibition, no-contact, SOIRA, and victim fine surcharge orders.

The accused was charged with operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood.

The trial involved two contested issues: (1) whether the accused's Charter rights to counsel of choice were violated when he was allegedly directed to Duty Counsel instead of private counsel at the roadside, and (2) whether a typographical error in the Certificate of a Qualified Technician (misspelling the manufacturer of the alcohol standard solution) rendered the certificate inadmissible.

The court rejected the defence evidence regarding the alleged Charter violation, finding the accused's account and that of his witnesses to be internally inconsistent, implausible, and incredible.

The court also found that the typographical error in the certificate was inconsequential and did not affect its admissibility.

The accused was convicted.

The accused was charged with sexual assault contrary to s. 271 of the Criminal Code.

The complainant alleged that the accused sexually assaulted her in his bedroom by grabbing her, using his body weight to restrain her, and touching her breast and vagina without consent.

The accused denied the allegations entirely.

The trial judge applied the test from R. v. W.(D.) and found reasonable doubt based on the detailed account provided by the accused, corroborating evidence from the accused's son, inconsistencies in the complainant's account regarding the mail, and the circumstances of the complainant's departure from the apartment.

The accused was acquitted.