WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4 or 486.6 of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order;

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

Court of Appeal for Ontario

Date: 20240229 Docket: C69607 MacPherson, Sossin and Copeland JJ.A.

Between

His Majesty the King Respondent

and

Trevor Basso Appellant

Counsel: Michael Lacy, for the appellant Dena Bonnet and Michael Perlin, for the respondent

Heard: February 23, 2024

On appeal from the conviction entered by Justice Louise L. Gauthier of the Superior Court of Justice on October 16, 2020 and from the sentence imposed on December 4, 2020.

Reasons for Decision

1The appellant was convicted of sexual assault with a minor contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46, acquitted of invitation to sexual touching pursuant to s. 152 of the Criminal Code, and an additional finding of guilt for sexual interference pursuant to s. 151 of the Criminal Code was stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729. The appellant was sentenced to the mandatory minimum sentence of 12 months’ imprisonment for sexual assault with a minor, pursuant to s. 271(a) of the Criminal Code, and 12 months’ probation.

2The appellant appeals against both his conviction and sentence. He also brings a motion for the admission of fresh evidence.

3We dismissed both the conviction appeal and sentence appeal, and dismissed the fresh evidence motion at the hearing, with reasons to follow. These are our reasons.

Background

4This case involves the sexual assault of a minor. At trial, the identity of the complainant and appellant, that sexual activity occurred, and that the appellant was 22 years old and the complainant 14 years old at the time of the incident, all were admitted.

5The complainant and appellant both testified at trial. The complainant and appellant provided significantly different accounts of the event in question and their prior interactions.

6On May 8, 2018, the complainant ran away from custody at a youth justice facility. She testified that she flagged down a car and asked for a ride home, but provided the appellant’s address thinking that her friend, Liam, (who was the same age as the complainant) would be there. The complainant testified that she had met the appellant and been at his apartment in the past. The appellant testified that he had not met the complainant before.

7The appellant testified that on May 8, 2018, he answered a knock at his door and met the complainant. He testified that she was wearing makeup. He asked her who she was. She provided a false name and said that she was looking for a mutual friend, Liam, whom the appellant understood to be 15 or 16 years old. The appellant testified to asking the complainant her age 3 times, and that she responded that she was 18 years old each time. The appellant testified that he always asks about a girl’s age when he is concerned that she might be “younger.” Further, the appellant gave evidence that he asked the complainant for documentary identification to prove her age, which she did not provide.

8While the appellant was in the washroom, his brother, Travis, briefly stopped by the apartment. Travis testified that he introduced himself to the complainant, asked for her name, and asked her how old she was. He testified that she replied with her fake name and that she was 18. Before Travis left, he asked one more time for her name and age. She repeated the same answers. He said “Okay, I’m just making sure because I don’t like – I don’t like any of [the appellant’s] friends and if they’re underage I – I boot them out of the house.” The complainant denied every being asked her age by the appellant or his brother.

9In examination-in-chief, the appellant described the encounter as follows: “Not even two seconds, three seconds after [his brother left], she walked up to me and said, ‘I’ll have sex with you if you don’t kick me out.’ So I was like, ‘Are you sure you’re 18?’ She said, ‘Yes’.” After some initial hesitancy, the appellant had sex with the complainant in his bedroom.

10The complainant denied this version of events. She testified that the appellant grabbed her arm and said he had something to show her in his room. When in his room, he tossed the complainant on the bed and said “[his] girlfriend better not find out about this” before asking if she could touch his penis with her hand or mouth. The complainant said no to both. She testified that he then pulled down her pants and had vaginal intercourse with her, during which she told him to stop.

11The police were told about the complainant’s location and knocked on the door. The appellant answered the door. The police found the complainant and arrested her for escaping custody. They took her to a holding cell, but also brought her to the hospital to do a rape kit.

The Trial Judge’s Decision

12The appellant’s position at trial was that the complainant was not a credible witness. She wrongly identified the offences occurring on May 9th rather than May 8th, and there was no evidence to confirm her testimony about having been to the appellant’s residence before. The appellant also argued that he took all reasonable steps to ascertain the complainant’s age. He believed her to be over the age of 16 based on her physical appearance and he asked her three times about her age.

13However, the trial judge found that the appellant’s own testimony warranted his conviction. The appellant testified not only to asking the complainant her age three times, but also to asking the complainant if she had any identification to confirm her age, which she did not. He conceded in cross-examination that he asked about her age and identification because he was concerned that she might be lying about her age. This concern was shared by his brother. Despite the complainant’s appearance and despite her assurance that she was 18 years old, the appellant had his doubts.

14Even so, the trial judge highlighted that the appellant made no inquiry about matters that could have disclosed to him that his concerns were in fact well founded – for example, what school the complainant went to or what grade she was in. The appellant conceded during the trial that despite his concerns he proceeded to have sexual intercourse with her. This admission was found by the trial judge to remove the availability of the defence of mistake of age. She concluded that “[t]his is a very unusual circumstance where even if I accept the accused’s evidence it does not lead to a finding of not guilty.”

15Concerning the complainant’s evidence, the trial judge found certain aspects of it “somewhat contrived.” The trial judge also found that the complainant’s “description of the sexual encounter leaves me with some doubt about the specifics of that encounter, for example, whether she in fact told [the appellant] to stop.”

16With respect to sentence, the trial judge considered the fact that the appellant has a minor intellectual disability and was a first-time offender, while also being mindful of the seriousness of the offence and the victim impact statement.

17The trial judge concluded a custodial sentence of 12 months was appropriate, and explained the basis for this conclusion as follows:

At the end of the day, having considered the effect of this offence on the victim, which has been reflected through her victim impact statement. I've considered it. I’ve considered the primary principle of denunciation and deterrence. I am satisfied that the appropriate proportionate sentence on the facts that I accepted at the end of this trial, are that [the appellant] should be sentenced to 12 months imprisonment. And that is the sentence I will impose. It will be a hard 12 months for [the appellant].

Analysis

(1) The Fresh Evidence Motion

18The appellant seeks to adduce two pieces of fresh evidence. One is a forensic psychological report concerning the appellant’s intellectual impairment obtained post-conviction and the reports referenced therein; and the other is evidence of ineffective assistance of counsel.

19Section 683(1)(d) of the Criminal Code authorizes the admission of fresh evidence on appeal where it is in the interests of justice to do so. The test to admit fresh evidence was set out by the Supreme Court of Canada in Palmer v. The Queen, [1980] 1 S.C.R. 759. It is as follows:

(a) the evidence could not, by the exercise of due diligence, have been available for the trial;

(b) the evidence is relevant in that it bears upon a decisive or potentially decisive issue;

(c) the evidence is credible in the sense that it is reasonably capable of belief; and

(d) the evidence is such that, if believed, it could have affected the result at trial. See also Barendregt v. Grebliunas, 2022 SCC 22, 468 D.L.R. (4th) 1, at para. 29.

20According to the appellant, the proposed fresh evidence is admissible. It is relevant to the appellant’s subjective state of mind, material to the issue of mens rea, and not excluded by any evidentiary rule, relying on the standard set out in R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 46, leave to appeal refused, [2012] S.C.C.A. No. 8.

(a) Evidence of the appellant’s intellectual disability

21The fact of the appellant’s mild intellectual disability was part of the record before the trial judge, but no medical evidence was adduced by the appellant to elaborate on either the appellant’s diagnosis or its implications for his testimony at trial.

22Post-conviction, counsel for the appellant retained a qualified forensic psychologist, Dr. Percy Wright, to assess the appellant’s intellectual disability and the potential impact on the issue of taking reasonable steps. Dr. Wright was asked to consider 3 specific questions: (1) whether the appellant has an intellectual disability and if so, how such a disorder would manifest itself in decision making; (2) whether the appellant suffers from a cognitive or other impairment that would limit his ability to act “reasonably” or “diligently” in respect of ascertaining the victim’s age; and (3) whether there is anything else about the appellant’s psychological profile that should be brought to light for the purposes of assessing his moral culpability for the underlying conduct.

23Dr. Wright’s report concluded that the appellant’s decision making is driven by concrete, visible perceptions rather than a more conceptual understanding of situations or expectations. In his opinion, the appellant would be at risk of taking concrete signs or statements literally, such as the victim’s statement that she was 18. While his disability would not preclude him from understanding people can and do lie, Dr. Wright’s view was that it would likely limit his ability to generate alternative ways to assess someone’s age. The appellant would therefore be at risk of falling back on these more concrete perceived signs of age. If admitted, the appellant contends this evidence would put in context the limited steps the appellant took to ascertain the complainant’s age.

24The respondent argues that this evidence should not be admitted, as it merely confirms the fact of the appellant’s mild intellectual disability, which was already in the record. Further, Dr. Wright’s conclusion casts no doubt on the verdict, and in fact supports the view that the appellant could understand the legal concepts of “reasonable steps” in this case. In particular, the report confirms that the appellant could both understand that someone would lie about their age, and that the appellant was capable of trying to determine the accuracy of a person’s stated age.

25As set out above, the trial judge convicted the appellant largely on his own evidence. While the evidence of the appellant’s intellectual disability suggests he may have been more likely to take the complainant’s statement of her age at face value, or been less able to deploy strategies to test her age, the appellant’s evidence made clear he harboured doubts about the complainant’s age, and did deploy strategies to test her age (such as asking her repeatedly to confirm her age, and asking her for documentary identification to confirm her age).

26Further, the trial judge was aware of the fact of the appellant’s intellectual disability, even if not the implications of that disability, and further evidence of his disability was considered in the sentencing analysis.

27In these circumstances, Dr. Wright’s report fails to meet the Palmer threshold as the verdict would not have been affected by its admission.

(b) Evidence of ineffective assistance of counsel

28With respect to the evidence of ineffective assistance of counsel, the appellant asserts trial counsel made two interrelated and serious errors which fell below the standard of a reasonable defence lawyer. First, trial counsel failed to obtain and adduce a medical report indicating the appellant’s intellectual disability and its potential impact on his testimony. Second, trial counsel failed to cross-examine the complainant on an incident in the past when she lied about being the victim of a sexual assault. These two errors are related as trial counsel explained his failure to raise the appellant’s intellectual disability, in part, because he thought it might distract from the focus he wished to bear on the lack of credibility of the complainant.

29In R. v. M.B., 2009 ONCA 524, 68 C.R. (6th) 55, at paras. 8-10, this court held that in order to succeed in a claim of ineffective assistance of counsel at trial, an appellant must establish: (i) the facts on which the claim of incompetence is based; (ii) that the representation provided by trial counsel was incompetent (the performance component of the test); and (iii) that the incompetent representation resulted in a miscarriage of justice (the prejudice component of the test).

30As Major J. stated in R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26-29, in most cases, it is best to begin with an inquiry into the prejudice component of an ineffective assistance of counsel claim, because if the appellant cannot demonstrate prejudice from the alleged ineffective assistance of counsel, it is unnecessary to address the competence of counsel at trial.

31In this case, in our view, the appellant has failed to demonstrate prejudice from the alleged ineffective assistance of counsel.

32The prejudice component focuses on “the nature and seriousness of counsel’s errors both from the perspective of the reliability of the verdict and the adjudicative fairness of the process leading to the verdict”: M.B., at para. 10, citing R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 62. Prejudice can be established if the appellant can demonstrate a reasonable probability that, but for the alleged incompetence, the outcome of the case would have been different: M.B., at para. 10. In this case, however, it is not reasonably probable that the outcome would have been different had the trial judge had before her the medical evidence of the appellant’s intellectual disability, or had counsel more effectively undermined the credibility of the complainant.

33For the reasons stated above, the failure to adduce further evidence of the appellant’s intellectual disability gave rise to no prejudice as it would not have affected the trial judge’s analysis of the appellant’s evidence or the conclusions which flowed from that analysis. Additionally, while trial counsel conceded there would have been no downside in obtaining such a report, he explained his tactical decision not to draw more attention to the appellant’s disability, based both on his own observations of the appellant’s abilities to present his evidence, and so as not to distract from the defence’s strategy of focusing on the complainant’s lack of credibility.

34With respect to the fresh evidence relating to trial counsel’s failure to cross-examine the complainant on her history of falsely reporting a sexual assault, while trial counsel acknowledges this cross-examination should have taken place, we similarly see no prejudice. The trial judge expressed doubts about various aspects of the complainant’s evidence and made clear that her lack of reasonable doubt in relation to the conviction of the appellant flowed from his own evidence and the admitted facts that sexual contact occurred and the complainant was 14 years old. A further attack on the complainant’s credibility at trial would have had no material impact in light of the trial judge’s reasons.

35Given that the appellant has not demonstrated prejudice in relation to the fresh evidence of the appellant’s intellectual disability, it is not necessary to probe further into the alleged incompetence of counsel in not obtaining and seeking to admit this evidence.

36For these reasons, the application to admit fresh evidence is dismissed.

(2) The Conviction Appeal

37The appellant raises two grounds of appeal in relation to the conviction: first, that the trial judge’s analysis of the mens rea required to commit the offences was legally flawed; and second, that the trial judge failed to take into account the appellant’s personal circumstances, and in particular his intellectual disability, as well as the evidence from the appellant’s brother.

38In June 2020, this court released its decision in R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758. The appellant’s trial took place 4 months later, in October 2020. In Carbone, this court clarified the law on what the Crown must prove to establish the mens rea for sexual offences against minors. Prior to Carbone, the Crown was only required to prove beyond a reasonable doubt that the accused did not take all reasonable steps to determine the complainant’s age. In Carbone, relying on the Supreme Court of Canada’s decision in R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, this court held that the Crown is additionally required to prove beyond a reasonable doubt that the accused believed the complainant was underage. The court summarized, at paras. 120 and 131, this new approach as follows:

As I read the above-quoted passage, it is no longer, strictly speaking, correct to define the required mens rea with respect to the complainant’s age by reference, only to the absence of reasonable steps to determine the complainant’s age. There is a mens rea requirement that focuses exclusively on the accused’s state of mind. The Crown is required to prove the accused believed the complainant was underage.

In summary, to convict on a charge under s. 152, the Crown must prove the accused believed (or was wilfully blind) the complainant was under 16, or was reckless as to her age. Recklessness includes a failure to advert to the age of the complainant, save in those cases in which the circumstances did not permit the inference that in proceeding without regard to the complainant’s age, the accused decided to treat her age as irrelevant to his conduct. While one can imagine circumstances in which the failure to advert to the age of the complainant should not be characterized as a decision to treat the age of the complainant as irrelevant and take the risk, those circumstances will seldom occur in the real world. For practical purposes, those rare circumstances, in which the failure to turn one’s mind to the age of the complainant does not reflect the decision to take a risk about the complainant’s age, will be the same rare circumstances in which the reasonable steps inquiry in s. 150.1(4) will be satisfied even though the accused took no active steps to determine the complainant’s age.

39The trial judge did not refer to Carbone in her reasons, nor was this case put before her by counsel for either party. However, in our view, her findings clearly support the conviction under the mens rea requirement as set out in Carbone. The trial judge found on the appellant’s own evidence that he chose to proceed with sexual activity with a minor after clearly adverting to the possibility that she was underage.

40As Watt J.A. in R. v. W.G., 2021 ONCA 578, 405 C.C.C. (3d) 162, at para. 70, noted:

As Carbone teaches, the fault element of recklessness is subjective. It involves the appreciation of some level of risk coupled with the conscious decision to take that risk. Under s. 151, an accused who chooses to proceed with the activity the section prohibits – sexual activity with young persons – after having adverted to the possibility that the complainant was underage, will inevitably be found to have been reckless with respect to the complainant’s age: Carbone, at para. 125. So too, at least in most cases, indifference to the complainant’s age, a state of mind that reflects a positive choice by an accused to treat the complainant’s age as irrelevant to their decision to engage in the sexual activity: Carbone, at paras. 126-127.

41The appellant argues that, in this case, the trial judge only considered the issue of whether the appellant took all reasonable steps and did not separately consider the issue of whether the appellant believed that the complainant was underage at all.

42We reject this argument.

43The trial judge found that:

[The appellant’s] own evidence establishes that in the circumstances of this case he did not take all reasonable steps to ascertain the complainant’s age. He had doubts about her age. He went so far because of those doubts to ask for documentary identification. She was unable to produce any. Because of his concern about her age he told [her] they could not do anything. He recalled having said those words. [Emphasis added.]

44In our view, this finding addressed both the appellant’s failure to take reasonable steps to confirm the complainant’s age, and his subjective disbelief that she was in fact the age she claimed. It established that the appellant was reckless with respect to the complainant’s age.

45Therefore, while the trial judge likely would have framed the mens rea test to reflect the new language from Carbone had the case been before her, this distinction would have had no bearing on the conviction, and does not rise to an error requiring appellate intervention.

46This ground of appeal fails.

47With respect to the second ground of appeal relating to the trial judge’s failure to properly consider the appellant’s personal circumstances, the trial judge was aware of the appellant’s intellectual disability. We already have concluded that even if further evidence of the nature of the appellant’s intellectual disability were before the trial judge, it would not have affected her analysis or conclusions.

48We see no merit in the final aspect of this ground of appeal relating to the brother’s evidence. None of the appellant’s brother’s testimony could affect the appellant’s own account of his state of mind and the steps he took to ascertain the complainant’s age.

49The conviction appeal fails.

(3) The Sentence Appeal

50The appellant argues that the trial judge imposed the lowest sentence she could in light of the mandatory minimum set out in s. 271(a) of the Criminal Code. He now seeks to challenge the constitutionality of the 12-month mandatory minimum as cruel and unusual punishment under s. 12 of the Charter of Rights and Freedoms.

51The appellant argues that an appropriate sentence in this case, taking into account the appellant’s personal circumstances, is either a suspended sentence or time served. [1]

52The trial judge, in imposing the 12-month sentence, made no reference to the mandatory minimum for the sexual assault conviction, although her colloquy with trial counsel at the sentencing hearing confirmed the application of the mandatory minimum and clarified that, at the sentencing hearing, the appellant had not challenged the constitutionality of the mandatory minimum.

53The respondent submits both that the sentence was fit, and that, as a result, there is no need to consider the constitutionality of the mandatory minimum as it had no bearing on the result in this case. However, should this court proceed to consider the constitutionality of the mandatory minimum, the respondent concedes that the present case cannot be distinguished from analogous cases where mandatory minimum sentences have been struck down as a violation of s. 12 of the Charter.

54In R. v. B.J.T., 2019 ONCA 694, 378 C.C.C. (3d) 238, this court struck down the mandatory minimum sentence of 12 months’ imprisonment for sexual interference as it constituted cruel and unusual punishment under s. 12 of the Charter. This decision was based on reasonable hypotheticals posited by appellate courts across Canada: see e.g., Caron Barrette c. R., 2018 QCCA 516, 46 C.R. (7th) 400.

55For example, in B.J.T., at para. 73, this court referred to the hypothetical proposed in R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, an analogous case to the one on appeal:

In Scofield, the B.C.C.A. postulated a hypothetical where two young people meet at a party; one is almost 16, while the other recently turned 21… The two people drink alcohol and smoke marijuana, reducing their inhibitions. They go to a private bedroom where they engage in some kissing and brief sexual touching over their clothing for ten minutes. They act willingly and know each other’s ages. Neither has a criminal record. Harris J.A. concluded that a one-year sentence for that conduct would be grossly disproportionate to a proportionate sentence which would not necessarily involve imprisonment or even a conditional sentence. He also added that if the 21-year-old had a disability that reduced his moral culpability or if Gladue factors applied, … those two characteristics of the offender could make the mandatory minimum sentence more disproportionate.

56The respondent submits that the impugned mandatory minimum sentencing provision had no effect on the sentence, and a sentence lower than the mandatory minimum would be unfit. The provision’s constitutionality is moot and need not be decided. As the Supreme Court of Canada stated in R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 18:

To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender’s sentence, as a condition precedent to considering the law’s constitutional validity, would place artificial constraints on the trial and decision-making process.

57A similar approach was taken in R. v. Hewitt, 2018 ONCA 561, at paras. 3-5, where this court declined to hear a constitutional challenge to a mandatory minimum for trafficking firearms, stating, at para. 5, “[i]t is not necessary for us to consider the appellant’s constitutional argument because it would not affect the sentence: R. v. Chambers, 2013 ONCA 680. Even if the mandatory minimum did not apply, the three-year sentence imposed in the circumstances of this case was fit and appropriate.” See also R. v. Kinnear (2005), 30 C.R. (6th) 1 (Ont. C.A.), at para. 59.

58In our view, there is no basis to conclude that the 12-month sentence imposed was not fit, nor did the trial judge commit an error of principle in her analysis of the applicable sentencing principles. She properly considered the priority of the sentencing principles of denunciation and deterrence, the appellant's intellectual disability, and the impact of the offence on the complainant.

59We accept that this court has discretion in this case as to whether to consider the constitutional challenge to s. 271(a) of the Criminal Code, given the conclusion that the sentence of 12 months was otherwise fit. In our view, that discretion should be exercised in favour of deciding the issue, given the importance of clarity and certainty as to the applicability of the analysis in B.J.T. to the mandatory minimum for sexual assault.

60In our view, B.J.T. is not distinguishable. The hypotheticals cited in B.J.T. could also have been prosecuted as sexual assault of a minor. On that approach, those hypotheticals would also attract a minimum sentence of one-year under the provision impugned in this case. The respondent accepts that if a one-year sentence is grossly disproportionate for the hypothetical facts, this conclusion does not vary based on whether the facts are labelled sexual interference or sexual assault of a minor.

61This conclusion compels a holding that the one-year minimum sentence at issue in this case offends s. 12 of the Charter. The respondent does not argue that the minimum sentence is saved by s. 1 of the Charter. We note that this conclusion is consistent with several trial court decisions prior to B.J.T. holding that the mandatory minimum of 12 months for sexual offences is unconstitutional: see e.g., R. v. Gordon, 2018 ONSC 6217, at paras. 14-18, citing, inter alia, R. v. Hussein, 2017 ONSC 4202; and R. v. M.L., 2016 ONSC 7082, 367 C.R.R. (2d) 268. For trial and appellate decisions in other jurisdictions, see R. v. MacLean, 2021 NLCA 24, at paras. 49-50, and the cases cited therein.

62For these reasons, while the sentence of 12 months imposed on the appellant is affirmed, the mandatory minimum for sexual assault set out in s. 271(a) of the Criminal Code is unconstitutional, and pursuant to s. 52(1) of the Constitution Act, 1982, of no force or effect.

Disposition

63The appeal conviction and sentence appeals are dismissed.

64The appellant had served approximately 6 months of his custodial sentence at the time he was granted bail pending appeal. If the appellant returned to complete his custodial sentence, he would be eligible for release based on earned remission on April 16, 2024. While the 12-month sentence has been affirmed on appeal, we are persuaded in the circumstances that it is appropriate to stay permanently the remnant of the custodial sentence: see e.g., R. v. Hillbach, 2023 SCC 3, 477 D.L.R. (4th) 84, at para. 111; and R. v. Plange, 2019 ONCA 646, 440 C.R.R. (2d) 86, at para. 47. The probation and other ancillary orders imposed by the trial judge remain in place.

“J.C. MacPherson J.A.”

“L. Sossin J.A.”

“J. Copeland J.A.”

1The appellant was in custody for over 6 months between December 4, 2020, and June 10, 2021 – the date he was sentenced until being released by this court on bail pending appeal.