WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

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

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

Court Information

ONTARIO COURT OF JUSTICE

DATE: January 17, 2020

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JOHN KIRBY

Before: Justice B.M. Green

Constitutional Challenge and Reasons for Judgment on Sentencing

Counsel:

• Mr. F. Stephens as counsel for the Crown
• Mr. M. Brillinger as counsel for the defendant

Judgment

Green J.:

A. Introduction

[1] Mr. Kirby plead not guilty to sexual interference and sexual assault contrary to sections 151 and 271(1)(b) of the Criminal Code. He was found guilty after the trial of both counts on April 9th, 2019. Mr. Kirby also plead guilty to a breach of recognizance for attending within 100 metres of the victim's home in violation of his release terms. The matter was adjourned a number of times for a sentencing hearing.

[2] The Crown sought a stay of the sexual interference count following the principles set out in R. v. Kienapple (1975), 15 C.C.C. (2d) 524 (S.C.C.). Presumably, the crown chose to seek a stay of the sexual interference as opposed to the sexual assault because there is a mandatory minimum jail sentence of six months incarceration for sexually assaulting a child under the age of 16 years old pursuant to section 271(b) of the Criminal Code. The mandatory minimum jail sentences for sexual interference have been found to be unconstitutional. In response to the crown's position, counsel challenged the constitutionality of the mandatory minimum penalty for sexually assaulting a person under the age of 16 as cruel and unusual punishment. This application led to even more delays with the sentencing.

[3] The crown submitted that a jail sentence in the range of 8 to 10 months for the sexual assault is fitting with one month consecutive for the breach charge. He strongly urged the Court to find that the minimum sentence of 6 months incarceration is not disproportionate to the offence or cruel and unusual punishment. Counsel challenged the constitutionality of the mandatory minimum sentence as disproportionate to the nature of the offence and submitted that it is unquestionably cruel and unusual punishment for this offender. He advocated for a conditional sentence in the range of 6 months. Both counsel and the crown submitted that a period of probation and an order pursuant to section 161 are appropriate. A S.O.I.R.A. order is mandatory, and counsel agreed that a DNA order ought to be made in the circumstances.

[4] The constitutionality of the mandatory minimum sentence of six months incarceration set out in subsection 271(b) has not been successfully challenged in Ontario. As a result, a detailed review of the facts and the law is necessary to explain my decision that the mandatory minimum sentence is grossly disproportionate to the circumstances of this offence and this offender. Moreover, I am bound by appellate decisions that relied on reasonable hypotheticals to find that both of the mandatory minimum sentences for sexual interference when prosecuted summarily or by indictment are cruel and unusual punishment. These reasonable hypotheticals are equally applicable to the offence of sexually assaulting a person under the age of 16. Accordingly, even if I am mistaken and six months incarceration is not a grossly disproportionate sentence for this offence and this offender, the mandatory minimum sentence in section 271(b) would still be unconstitutional.

B. Factual Findings and a Legal Issue Not Addressed During Oral Judgment

i. The Circumstances of the Offence

[5] I.B. was only seven years old at the time of this offence. She lived in an apartment building with her family. She was visiting her friend, N.H., who also lived in the same building down the hallway on the same floor. She did not know Mr. Kirby although she may have seen him panhandling around her father's workplace. Mr. Kirby was homeless at the time of this offence. He frequented the apartment building where the B. family resided for two reasons. His son lived in the same building on a different floor. He was also friends with an adult who rented the apartment where I.B. was visiting her friend for a birthday party on April 14th, 2018. Mr. Kirby did not know I.B. or know that she was at his friend's residence on this date.

[6] Mr. Kirby went to his friend's apartment to get some help with accessing the internet. Mr. Kirby's friend was unavailable but Mr. Ogden, another adult tenant, invited him into the apartment. Mr. Kirby was sitting on the couch and I.B. was playing with her friend at a nearby table. Mr. Ogden offered to get a hot beverage for Mr. Kirby and momentarily left the room to go and make it.

[7] While Mr. Ogden was in the kitchen, Mr. Kirby approached the two girls without an invitation. N.H was seated at the table and I.B. was standing up. He positioned himself between the two girls which partially obstructed N.H.'s view of I.B. Mr. Kirby placed one arm over I.B.'s shoulder, touching her neck, and then grabbed her "butt" with his other hand. I accepted I.B.'s evidence that Mr. Kirby squeezed her bum. I.B. was very clear that the touching was over her clothing and Mr. Kirby's hand did not touch the front part of her body. The touching only lasted a matter of seconds because Mr. Kirby was interrupted by Mr. Ogden.

[8] Mr. Ogden was an exceptionally strong witness. He presented as sincerely shocked by what he witnessed when he came out of the kitchen. He saw Mr. Kirby with his hand on I.B.'s "backside". He had a very clear recollection of Mr. Kirby's index finger, pinky finger and palm being on each side of her buttocks with his two middle fingers between her legs. To be clear, I find that Mr. Kirby's fingers did not reach the front part of Ms. B.'s body or touch her vaginal area. Rather, Mr. Ogden described how Mr. Kirby cupped I.B.'s bum with his hand and where his fingers were positioned. I.B. was standing up but bent over the table. Mr. Kirby was standing between the two girls with his elbow leaning on the table. It looked to Mr. Ogden like Mr. Kirby was trying to block N.H. from seeing what he was doing to I.B.

[9] Mr. Ogden immediately confronted Mr. Kirby about what he was doing and yelled at him to get out of the apartment. Mr. Kirby removed his hand from I.B.'s behind and left the apartment. Mr. Ogden brought I.B. home and reported the incident to her parents. The police were quickly contacted after this incident.

[10] Considering the age of the victim, the stress that the proceeding was causing to all parties and my concern with avoiding delays, I provided a relatively brief oral judgement convicting Mr. Kirby of sexual assault and sexual interference. I did not provide a thorough legal analysis of whether the Crown had proven all of the essential elements of the offence of sexual interference beyond a reasonable doubt. As a result, I am providing supplementary reasons during the course of this written judgement.

[11] In the recent judgement of the Ontario Court of Appeal in R. v. B.J.T., [2019] O.J. No. 4503 at paragraphs 37 and 38, the Court of Appeal reminded trial judges that sexual interference is a specific intent offence. Similar to my judgement, the trial judge failed to specifically avert to this particular element of the offence:

The offence of sexual interference under s. 151 of the Criminal Code is made out when the accused, for a sexual purpose, directly or indirectly touches the body of a person who is under 16 years old. It is a specific intent offence, meaning that the offender must specifically intend that the touching is for a sexual purpose. The offender may also have another purpose or reason for the touching, but if he or she also has a sexual purpose, the offence is made out.

B.J.T. correctly submits that in his reasons for conviction, the trial judge never specifically addresses the requirement that the touching be for a sexual purpose. However, in the reasons for sentence, delivered several months later, he does address the issue specifically.

And further on at paragraph 43:

While it is expected that a trial judge sitting alone will clearly include all of his or her findings in the reasons for conviction, because the judge is not functus officio until the sentence has been imposed, a court of appeal may look at the reasons for sentence as well as the reasons for conviction to understand the basis for conviction.

[12] Even though the crown sought a stay of the count of sexual interference pursuant to the principles in Kienapple, supra, it is incumbent on me to more fulsomely explain my reasons for the conviction. There was no evidence from Mr. Kirby with respect to his state of mind when he touched this child because he denied the allegations. I rejected his evidence and it did not raise a reasonable doubt. As a result, I must infer his intentions from the facts that I do accept as described by the Crown witnesses.

[13] I am aware that the crown is required to prove beyond a reasonable doubt the specific subjective intent that Mr. Kirby touched I.B. for a sexual purpose. I accept that this was a momentary, spontaneous action by Mr. Kirby, and he didn't say anything when he did it. Nevertheless, considering the manner in which he blocked the view of the other child standing beside I.B., that he physically cupped the behind of a small child in such a manner that his fingers were on both cheeks and in between her legs and he squeezed this intimate area of her body while grabbing her, the only reasonable inference from the facts is that he touched I.B. for a sexual purpose.

ii. Victim Impact

[14] A victim impact statement was prepared by Mrs. S.B., I.B.'s mother. Mrs. S.B. was also interviewed by the author of the pre-sentence report and she provided even more information about the devastating impact of these offences.

[15] During her testimony, I.B. presented as a lively, pleasant, bright, fair, articulate, little girl. I was impressed with her throughout her evidence. I.B.'s mother provided a very different perspective. She described her daughter as being thrown into an 18 month long nightmare filled with fear, anxieties and anger. Despite being in therapy for the occurrence commencing four days after it happened, Mrs. S.B. related that her daughter is still suffering from "lasting effects" including some self esteem issues. I.B.'s sleep was disrupted by nightmares and she became paranoid about her personal safety and seeing Mr. Kirby again. I.B.'s school work suffered, and she had to get extra help at school. I.B.'s interactions with adult males has changed as she is afraid to be around unrelated men.

[16] From the victim impact statement, it was evident that Mrs. S.B. is struggling with her own unresolved issues as a result of being a victim of sexual abuse herself. She stated that she "felt every emotion I had worked hard to deal with over the years returned to the surface". As a result, the emotional repercussions have been very significant for S.B. She described being overwhelmed by feelings of guilt, fear and self-loathing. It is not clear to me whether S.B. was describing the impact of her own victimization or relating how she has been impacted by her daughter's victimization.

[17] As a result of this offence, S.B. has significantly restricted her daughter's activities. I.B. is not even allowed to visit her friend at N.H.'s apartment. Mrs. S.B. is struggling with fears that I.B. may be revictimized or that she may see Mr. Kirby again. Every aspect of I.B.'s life is now strictly controlled and monitored to protect her from any potential harm.

[18] It is difficult to determine the true extent of the impact of the sexual offence itself since the victim impact statement referenced Mrs. S.B.'s past victimization and emphasized the psychological ill-effects of various unproven breaches of the terms of bail. Mr. Kirby only plead guilty to one breach not multiple breaches. Mr. Kirby is not accountable for the lasting deleterious impact of S.B.'s prior victimization. Nevertheless, Mr. Kirby's offending behaviour brought back a flood of emotions for a vulnerable woman, S.B., and negatively impacted every facet of a young child's life.

[19] While this offence has had substantial impact on the victim and her family, an additional period of incarceration in addition to the pre-trial custody is not the only sentence that can achieve deterrence, denunciation and acknowledge the seriousness of this offence. The sentence range proposed by the crown was excessive and over emphasized retribution. Incarcerating Mr. Kirby for 8 to 10 months would be a patently unreasonable sanction particularly in light of the various other orders that will also address the principles of sentencing. A sentence must balance competing considerations and sentencing principles.

iii. Circumstances of the Offender

[20] Mr. Kirby is 64 years old. He looks significantly older than his stated age. He is struggling with physical ailments and cognitive deficits. Despite a transient lifestyle, Mr. Kirby does not have any prior convictions.

[21] He has not led an ideal life. Mr. Kirby has a grade nine education. He is functionally illiterate. He immigrated to Canada as a youth with his family. After his parents died, he drifted apart from his nine older siblings. Although he is currently single, he was once married and had a child with his former spouse. He is estranged from his family other than his son.

[22] Mr. Kirby's son, Micah Kirby, described his dad as an "absentee parent" growing up. Mr. Kirby effectively abandoned his son for a period of time. They eventually reunited and they now share a relationship that is "more like friends than a father-son relationship". Micah Kirby has been incredibly supportive of his father throughout these proceedings and often attends court with him. He will be moving from his current residence in the immediate future so that his father has no reason to return to the building where the B. family still resides. This will be a substantial relief for Ms. I.B. and her parents. They won't have to worry about bumping into Mr. Kirby anymore when he wants to visit his son.

[23] Mr. Kirby has a sporadic work history, but he has primarily supported himself on O.D.S.P. for the last 18 years due to a debilitating physical disorder. Until recently, Mr. Kirby was homeless, but he often visited the building where I.B. resided with her family to see his son and visit his friend. He breached his bail by returning to that same apartment building.

[24] After Mr. Kirby was released on his last recognizance, there were very positive changes in his personal circumstances. While on bail, he connected with and benefitted from community resources. A dedicated worker at the local men's shelter secured a geared to income residence for him that he has been residing in since September of 2018. For the first time in many years, Mr. Kirby has not been homeless for more than a year. Mr. Kirby's case worker expressed substantial concern that, if Mr. Kirby is incarcerated for significant period time, it will likely result in the loss of this residence. In addition to a period of incarceration potentially destabilizing Mr. Kirby's life, he also struggles with physical disabilities and developmental and cognitive limitations.

[25] Dr. Charlene Lockner has been treating Mr. Kirby for his physical ailments since August of 2016. She explained that he has a myleoproliferative disorder (pos essential thrombocytosis). Counsel explained that this is a significant bone marrow/blood disorder that causes his client to feel physically exhausted and have low energy. I understand that it can also cause issues with excess bleeding. Dr. Lockner advised that Mr. Kirby takes various prescribed medications including medical marijuana. She also advised that he is "functionally illiterate". Dr. Lockner expressed her personal reaction to this conviction. She was surprised by the fact that Mr. Kirby was convicted of a sexual offence against a child. She related that he does not have any personal history of sexual abuse as far as she is aware nor has he ever demonstrated any behaviours that caused her any concern.

[26] Micah Kirby also expressed concerns in the presentence report that there is something wrong with his father's mental state. He has learning disabilities and problems with understanding or comprehending information. He believes that his father's lifestyle, after years of homelessness, has negatively impacted his decision making. As a result, his father can be challenging to live with. He has difficulties with following rules or taking care of his personal hygiene.

[27] During the preparation of the presentence report, the author found Mr. Kirby to be confused, he contradicted himself and he had a poor memory. Mr. Kirby was called as a witness during the trial. I found that his evidence was contradictory, confusing and sometimes unresponsive to the questions that were being asked by his counsel and the crown. For example, he initially adamantly maintained he had not gone near I.B. or her friend. Afterwards, he volunteered that he did approach I.B. while she was playing with her friend. Despite some confusion, there was no indication that he was unfit to stand trial. He evidently understood the nature proceedings and the participants, but he did lose focus at times.

[28] A psychological testing summary was prepared by Dr. Wade Deamond in November of 2018 after concerns were expressed about Mr. Kirby's ability to understand the court proceedings. Mr. Kirby was subjected to a number of tests. The psychologist opined that Mr. Kirby "may" not have fully understood his initial release conditions. I conducted a fulsome plea inquiry with Mr. Kirby prior to accepting his plea of guilty to the breach charge. He was appropriately responsive to all of my questions. When he was asked whether he admitted the facts, neither he nor his experienced counsel expressed any concerns that he did not understand the simple and straightforward requirement that he was not supposed to go back to that apartment building. Dr. Deamond concluded that Mr. Kirby did not meet the requirements for an application that he was not criminally responsible for his conduct. Dr. Deamond suggested however, that Mr. Kirby would benefit from a full forensic assessment to gain greater insight into his cognitive abilities and psychological profile.

[29] Mr. Kirby's son was candid about his father's background and some of his challenges. He has demonstrated unwavering support for his dad. I noted that Micah Kirby made some disturbing remarks in the pre-sentence report about his belief that this offence was part of a set-up. He is definitely entitled to believe in his father's innocence. However, since Micah Kirby is part of the plan of care to support his father in the community, I hope he understands the seriousness of the court orders and assists his father with comprehending the terms regardless of his personal views.

[30] In addition to the support of his son, Mr. Kirby has the benefit of a community outreach worker, Ms. McDowell. She meets with him twice a week which includes home visits, errands and attending appointments. He continues to have resources available to him at Cornerstone, the local men's shelter. She related that Mr. Kirby has stabilized and he seems to be compliant with her instructions and directions. Ms. McDowell emphasized that she has never observed him to be sexually inappropriate with anyone. She confirmed that Mr. Kirby has both developmental and comprehension issues. She is prepared to continue to assist him and visit him once he is sentenced for this offence.

[31] Mr. Kirby has been on bail for a significant period of time. He initially failed to comply with the terms of his release and returned to the residence where the B. family resides. However, his bail program supervisor, Mr. Evans, related that Mr. Kirby has been doing very well since his last release from custody in December of 2018. Like everyone else who has worked with Mr. Kirby, Mr. Evans also expressed concerns about Mr. Kirby's cognitive limitations. Nevertheless, he described Mr. Kirby as "cooperative and tends to follow directions."

[32] Based on all of this information, although Mr. Kirby has developmental and cognitive issues and he breached his bail, it appears that Mr. Kirby can be compliant with terms of a probation order as long as the terms are explained to him and he has sufficient time to process all of this information with the assistance of his support network. However, his potential for rehabilitation is questionable considering his denial of the offending behaviour.

[33] Mr. Kirby was described during the pre-sentence report as "adamant of his innocence" and he continues to deny that he committed this offence. He denied that he struggles with impulse control or that he has any deviant sexual interests. He has not expressed any remorse for this offence. Counsel did not provide the court with a risk assessment.

[34] Finally, in terms of the consequences that Mr. Kirby has already experienced as a result of this offence, he spent 28 days in pretrial custody which would be a total of 42 days on a 1 for 1.5 basis. He was charged with other offences of breaching his bail, but he only plead guilty to one breach and he only admitted the facts with respect to that breach of bail. I am not aware of any further allegations of breaching the terms of his bail for over a year now.

[35] Mr. Kirby has been bound by restrictive terms of release with the bail program. He was required to get counseling and attend rehabilitative programs, his interactions with children were circumscribed and he was effectively banished from the town of Whitby unless he was in the company of a bail program worker or a community outreach worker. This banishment term was a hardship for him. After Mr. Kirby was convicted of these offences, the term prohibiting him from attending the town of Whitby was deleted with the consent of counsel and the crown. As a result, he was only bound by that particular term for approximately 5 months.

C. Appropriate Sentence Range and the Constitutional Challenge to the Mandatory Minimum Period of Incarceration

i. The Constitutional Challenge to the Mandatory Minimum Sentence

[36] The crown advocated that a sentence that is higher than the statutory minimum is called for in this matter considering the young age of the child and the impact that this offence has had on her and her family. Counsel stressed the relatively minimal invasiveness and brevity of the sexual assault, the lack of a criminal record, Mr. Kirby's support network and his personal circumstances.

[37] I have to balance competing considerations of the aggravating features of this offence and the mitigating factors relating to this offender to arrive at a just sanction. In addition, I must consider the constitutionality of the minimum sentence of 6 months of incarceration that has been mandated by Parliament for this offence.

[38] The Ontario Court of Appeal in R. v. B.J.T., supra, at paragraphs 66 and 67, helpfully summarized the process for determining whether a mandatory minimum sentence is cruel and unusual punishment having regard to the nature of the offence and the circumstances of the offender:

The trial judge set out and applied the two-step process mandated by the Supreme Court in Nur, at para. 46, to determine whether the mandatory minimum sentence of one year is grossly disproportionate to the appropriate punishment having regard to the nature of the offence and the circumstances of the offender.

That test was recently summarized by Steel J.A. in R. v. JED, 2018 MBCA 123, 368 C.C.C. (3d) 212, at para. 92 as follows:

Following R. v. Nur, 2015 SCC 15, there is a two-step analysis to determine whether the mandatory minimum sentence was grossly disproportionate (see para 46):

1. The court must determine what constitutes a proportionate sentence for the offence, having regard to the objectives and principles of sentencing in sections 718-718.2 the Code; and

2. The court must ask whether the [mandatory minimum sentence] requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the [mandatory minimum sentence] provision is inconsistent with section 12 and will fall unless justified under section 1 of the Charter. In the analysis under the second step, the court is to determine the effect of the [mandatory minimum sentence] on the offender in the present circumstances and on a hypothetical offender in reasonably foreseeable circumstances (see R. v. EJB, 2018 ABCA 239 at para 11; and R. v. Morrison, 2017 ONCA 582 at para 117).

Step #1: What Constitutes an Appropriate Sentence for This Offence and This Offender?

ii. The Purposes and Principles of Sentencing

[39] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[40] Depending on the nature of the offence, a Court may focus on specific principles of sentencing as the most important factors to guide the Court's decision. In November of 2005, section 718.01 of the Criminal Code was proclaimed in force. At the heart of the purposes and principles of sentencing in section 718.01 and parts of section 718.2 is the overriding goal of protecting the most vulnerable members of our community, our children. Section 718.01 statutorily identifies that the primary consideration in sentencing for offences against children are the objectives of denunciation and deterrence.

[41] The Ontario Court of Appeal has repeatedly stressed both the serious nature of sexual abuse against children and the importance of sentencing sexual offenders with the principles of denunciation and deterrence in mind. Moreover, multiple Appellate Courts in Ontario have emphasized that child sexual abuse is extremely serious because of the emotional and psychological harm caused to the victims. This harm leaves the victims with the deepest scars, a legacy of shame and dysfunction that can last a lifetime. Justice Abella explained in R. v Stuckless, [1998] O.J. No. 3177 (C.A.):

Sexual abuse is an act of violence. When committed against children, the violence is both physical and profoundly psychological. It is coercive and exploitative conduct, and represents the use of compulsion against someone who is defenseless. As Moldaver J. stated in R. v. McF., released April 27, 1992, unreported, (Ont. Ct. (Gen. Div.)):

I cannot conclude that [the accused] should be treated in a more lenient fashion simply because he refrained from the use of threats of physical harm or the infliction of limited and measured amounts of force …

I must again reiterate the feelings that I have expressed in similar cases where the lack of serious physical harm has been advanced as a factor to be considered in mitigation. The crimes of incest and sexual assault are inherently violent. They can and often do have a crippling effect upon the psychological and emotional well-being of the victim. Conduct which brutalizes the mind can be far more devastating, painful and long-lasting than conduct which causes injury to the body.

[42] While I.B. was not physically harmed, it is evident that this offence has negatively impacted her psychological and emotional well-being. Any sexual offence against a child, no matter how brief or seemingly minor, is a serious crime. Section 718.2 of the Criminal Code specifically requires that a Court sentencing an offender shall take into consideration the following deemed aggravating circumstances:

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of 18 years;

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim;

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

[43] Two of these statutorily aggravating factors are present in this case. I.B. was only 7 years old and this offence has had a profound impact on her and her family. However, one notable statutory aggravating factor is absent. Mr. Kirby did not occupy any position of trust with respect to I.B. He was a stranger to her and opportunistically grabbed her bum when the adult watching her momentarily stepped out of the room.

[44] In addition to the aggravating factors, there is an absence of certain mitigating factors. One of the most significantly mitigating factors in cases of child sexual abuse is a guilty plea and a sincere expression of remorse. A guilty plea avoids the trauma of a trial for a vulnerable witness, provides the victim with validation, assists with making reparations and gives the Court more hope for rehabilitation when an offender accepts responsibility and shows insight into the gravity of his conduct.

[45] In R. v. Shah, 2017 ONCA 872, [2017] O.J. No. 6141 at para 8, the Ontario Court of Appeal explained that while the lack of a guilty plea or an expression of remorse must not be treated as aggravating factors, a Court can still consider these facts when assessing the need for specific deterrence and an offender's potential for rehabilitation:

Lack of remorse is not ordinarily a relevant aggravating factor on sentencing: R. v. Valentini, [1999] O.J. No. 251 (C.A.), at para. 82. It cannot be used to punish the accused for failing to plead guilty or for having mounted a defence: Valentini, at para. 83; R. v. J.F., 2011 ONCA 220, 105 O.R. (3d) 161; aff'd on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565. Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused's absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed and demonstrate a substantial likelihood of future dangerousness.

[46] Mr. Kirby did not plead guilty, he has not expressed any remorse and he has not accepted responsibility for his crime against this child. These important mitigating factors are entirely absent. Of course, these are not aggravating factors. Mr. Kirby cannot be penalized in any way for exercising his right to a trial however, he is also not entitled to the benefit of the mitigated sentence ranges considered appropriate in other cases because of a plea of guilty. More importantly, counsel emphasized Mr. Kirby's potential for rehabilitation to support the sentence range that he is advocating for his client. Unless Mr. Kirby addresses what precipitated this spontaneous and impulsive sexual assault of a small child, it is difficult to conceive of his potential for rehabilitation with respect to the offending behaviour.

[47] The crown emphasized further incarceration of 8 to 10 months is the only means to achieve denunciation and deterrence. However, Mr. Kirby was already incarcerated, he has followed bail terms that restricted his interactions with children for a long time, he will be required to comply with a lengthy probation order, a section 161 order that will restrict his liberty and any potential interactions with children and protect the complainant and there will be a S.O.I.R.A. order that labels him as a sex offender. All these sanctions will cumulatively amply address the predominant principles of sentencing of denunciation and deterrence by sending a message to like minded offenders that our courts will treat all sexual touching of children seriously and warrants strong condemnation from our courts.

iii. The Principle of Parity

[48] In addition to the guiding sentencing principles, I must also address the principle of parity as set out in subsection 718.2(a) of the Criminal Code:

A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances

[49] While this is a laudable goal, each individual case is often so unique that it is difficult to achieve parity in sentencing. For example, none of the cases relied on by the crown or defence counsel to support their opposing sentencing positions have facts that have a similar offender with similar offences in similar circumstances. I did not find any of the cases provided by counsel to be of assistance. Candidly, I did not find some of them persuasive and I would not have followed a few of the dated judgements from Saskatchewan. The crown fairly provided cases both above and below the sentence range that he was seeking. Each of the cases however, involved individuals who were left in a position of trust with respect to a child or more intrusive touching that warranted a higher sentence range.

[50] The case that came the closest factually in the crown's written submissions was R. v. Plehanov, [2017] B.C.J. 2386 (B.C.S.C.). The adult accused was left to mind a church goers 6 year old child and he rubbed her buttocks twice and touched her groin over her clothes. The Court ultimately sentenced him to 6 months of jail, two years of probation, a five year section 161 order and a 20 year S.O.I.R.A. order and a DNA order. This offender was in a limited position of trust and he touched the child twice on the buttocks and once in her groin, yet the sentence is lower than the one advocated by the crown in this case and the section 161 order was only for 5 years.

[51] Ultimately, considering the unfortunately countless varying ways to commit a sexual assault, the distinctiveness of each offence and each offender, it is very challenging to find comparable cases. As Chief Justice Lamer stated in R. v. M. (C.A.), [1996] 1 S.C.R. 500, (1996), 105 C.C.C. (3d) 327, at paragraph 92:

...Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

[52] The difficulty with achieving parity is one of the reasons why these mandatory minimum periods of incarceration for sexual offences are so vexing. Sexual offences range from minimally intrusive momentary occurrences to horrifying facts. Offenders can be responsible, sympathetic and apologetic or they can be recalcitrant unrepentant recidivists. The Ontario Court of Appeal pointedly stated in R. v. E.C., 2019 ONCA 688, [2019] O.J. No 4460 (Ont.C.A.):

The offence of sexual interference can be committed in any number of ways, and with varying levels of moral turpitude. The broad range of available sentences is rooted in the "infinitely variable ways in which the offence can be committed": R. v. M.B., 2013 ONCA 493, at para. 21. Within the wide range of available sentences, the court must impose an appropriate sentence - one that is proportionate to the gravity of the offence and the degree of responsibility of the offender, and, respecting the principle of parity, is proportionate to sentences imposed for similar offences committed in similar circumstances: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53.

[53] Mr. Kirby has already served the equivalent of a 42 day jail sentence. Consequently, I am not considering a non-custodial sentence. Rather, I am considering whether re-incarcerating him is necessary to address the predominant sentencing principles. There is no doubt that Mr. Kirby possesses a high degree of moral blameworthiness for the impact that his conduct has had on a small child's life and that he willingly and intentionally engaged in the sexual touching of a 7 year old girl. Nevertheless, I have determined that Mr. Kirby should not be further deprived of his liberty since less restrictive sanctions are appropriate in the circumstances of this case.

[54] A fit and appropriate sentence for the sexual assault is one of 20 days pretrial custody or the equivalent of a 30 day sentence and a suspended sentence with the maximum period of probation that will require Mr. Kirby to participate in significant rehabilitative counseling and provide the B. family with ongoing protection and a sense of safety. The balance of the pre-trial custody of 8 days or the equivalent of 12 days consecutive will be attributed to the breach charge with a suspended sentence and a concurrent probation order.

Step #2: Is the Mandatory Minimum Period of Incarceration Cruel and Unusual Punishment?

[55] Since I have determined that the fit sentence is less than the mandatory minimum period of incarceration, in the second step of the analysis, I must decide whether the mandatory minimum sentence of 6 months jail is grossly disproportionate to the fit and appropriate sentence. If it is not grossly disproportionate when applied to the facts of this case, the next step is determining whether the mandatory minimum sentence would be grossly disproportionate in reasonably foreseeable circumstances.

[56] The Supreme Court of Canada in R. v. Nur, 2015 SCC 15, [2015] S.C.J. No. 15 at para 39, cautioned that:

This Court has set a high bar for what constitutes "cruel and unusual ... punishment" under s. 12 of the Charter. A sentence attacked on this ground must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1073. Lamer J. (as he then was) explained at p. 1072 that the test of gross disproportionality "is aimed at punishments that are more than merely excessive". He added, "[w]e should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation". A prescribed sentence may be grossly disproportionate as applied to the offender before the court or because it would have a grossly disproportionate impact on others, rendering the law unconstitutional.

[57] The Supreme Court recognized, at paragraphs 42 and 43, that:

…the fundamental principle of sentencing under s. 718.1 of the Criminal Code is that "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

It is no surprise, in view of the constraints on sentencing, that imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 80. "Only if this is so can the public be satisfied that the offender 'deserved' the punishment he received and feel a confidence in the fairness and rationality of the system".

And further at paragraph 44:

Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing.

[58] While in other cases an additional 5 months in jail above the warranted sentence may not shock the community, this is one of those extreme cases wherein this penalty would be fundamentally unjust. In addition to all of the other orders that will be imposed, re-incarcerating this physically frail and cognitively impaired man who has no criminal record and has finally achieved some housing stability in the circumstances of this offence would certainly violate the principle of proportionately. Moreover, a further period of incarceration would be antithetical to any notion of the principle of restraint. Section 718.2 states that:

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[59] There are other available less restrictive sanctions that are entirely appropriate in the circumstances. A probation order can serve as rehabilitative tool, but it can also achieve specific deterrence. I will be ordering Mr. Kirby to comply with the maximum period of probation, in part, to act as a consistent reminder of the consequences of his misconduct. I recognize that the Ontario Court of Appeal found in R. v. Inksetter, (2018) 2018 ONCA 474, 141 O.R. (3d) 161 at paragraph 18 that:

Probation has traditionally been viewed as a rehabilitative sentencing tool. It does not seek to serve the need for denunciation or general deterrence: R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, at p. 87 S.C.R. Further, in this case the trial judge specifically viewed probation as a rehabilitative sentencing tool: he noted how it would assist in ensuring that the respondent continued to receive counselling. To the extent that probation was not intended as a rehabilitative tool, it was intended to address specific deterrence. The trial judge included a period of probation to achieve these objectives although he had found they had already been significantly accomplished.

[60] Considering the cumulative impact of all of the orders that will restrict Mr. Kirby's liberty interests for a lengthy period of time, in addition to the pre-trial custody and some recognition for the time he spent complying with the terms of his bail, all of these sanctions will collectively accomplish the predominant sentencing principles of denunciation and general deterrence. This sentence balances the aggravating factors, the age of the victim, the impact on the victim and her family, the seriousness of any child sexual offence and the mitigating circumstances of this offender.

[61] The Supreme Court of Canada explained in R. v. Lloyd, 2016 SCC 13, [2016] S.C.J. No. 13 at paragraph 24 that to be grossly disproportionate " a sentence must be more than merely excessive. It must be so excessive as to outrage standards of decency and abhorrent or intolerable to society." Applying this definition, I find that an additional sentence of incarceration of at least five months would be more than merely excessive, it would be grossly disproportionate to the circumstances of this offender and this offence.

[62] Even if I am wrong and it is not grossly disproportionate in the circumstances of this case, the mandatory minimum cannot withstand constitutional scrutiny based on a consideration of reasonable hypotheticals. The Ontario Court of Appeal in R. v. B.J.T., supra, held that the mandatory minimum penalty of one year incarceration for sexual interference when the crown elects to proceed by indictment is unconstitutional. The Court of Appeal observed at paragraphs 71 and on that:

However, the issue of the constitutionality of the mandatory minimum for sexual interference (s. 151 (a) of the Criminal Code) has recently been considered by five other courts of appeal across the country: the Quebec Court of Appeal in Caron Barrette c. R., 2018 QCCA 516, 46 C.R. (7th) 400; the Nova Scotia Court of Appeal in R. v. Hood, 2018 NSCA 18, 409 C.R.R. (2d) 70; the Manitoba Court of Appeal in R. v. JED; the British Columbia Court of Appeal in R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379; and since the argument of this appeal, the Alberta Court of Appeal in R. v. Ford, 2019 ABCA 87, 371 C.C.C. (3d) 250. In all five cases, the courts found the mandatory minimum in s. 151 of the Criminal Code contravened s. 12 of the Charter and was not saved by s. 1.

In those cases, the courts noted that the offence of sexual interference can be committed in a variety of ways, thereby increasing the potential for the mandatory minimum sentence to be found to be grossly disproportionate in some circumstances for some offenders. In four cases, hypothetical circumstances for conviction were posited and accepted as reasonably foreseeable, while in JED, the Manitoba Court of Appeal accepted the reasonable hypotheticals posited by the two other courts (Q.C.C.A. and N.S.C.A.) whose decisions pre-dated JED, as appropriate for the analysis. Steel J.A. noted that they were based on previous cases before the court. All five appeal courts found the mandatory minimum sentence to be grossly disproportionate to a range for an appropriate sentence for the reasonably foreseeable hypothetical offender in the posited circumstances.

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, making the close in age exception (s. 150.1(2.1) of the Criminal Code) inapplicable. 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, (R. v. Gladue, [1999] 1 S.C.R. 688,) those two characteristics of the offender could make the mandatory minimum sentence more disproportionate.

In Caron Barrette, the facts were that the offender was 23 years old. He engaged in a romantic relationship with a 14-year-old girl with her parents' consent. Neither was aware that their conduct was illegal. The court found that a 90-day intermittent sentence was proportionate and that the one-year mandatory minimum was therefore grossly disproportionate. The court also confirmed that the three reasonable hypotheticals postulated by the trial judge were appropriate and supported the finding that the mandatory minimum of one-year contravened s. 12 of the Charter. Those three were:

1. A romantic relationship similar to that which existed between the offender and the victim, but for a period of several days, which only involved kissing and touching;

2. An isolated caress, over the clothes, on the thigh or buttocks, not in the context of an abuse of authority, where the sexual touching is found to be without consequences for the victim; and

3. A romantic relationship in which the victim is 15 1/2 years old and legally unable to consent at the beginning of the relationship, and the relationship continues after she reaches 16 years old.

I agree that the hypotheticals postulated in these cases are reasonable and that the one-year mandatory minimum sentence would be grossly disproportionate to a proportionate sentence for the offender in those circumstances. As a result, the mandatory minimum sentence constitutes cruel and unusual punishment contrary to s. 12 of the Charter. The Crown does not submit that such a provision is saved by s. 1.

[63] Similarly, the Court of Appeal cited with approval the recent appellate decision of Justice Schreck in R. v. Drumonde, [2019] O.J. No. 731 (Ont.S.C.J.) wherein the Court struck down the mandatory minimum sentence of 90 days incarceration for sexual interference when the crown elects to proceed by summary conviction. Justice Schreck provided the following guidance when conducting this type of analysis:

At paragraph 38:

Determining what sentence is proportionate in a given situation is to be determined by the courts, not the public. Not only is the requirement for proportionality in sentencing codified in s. 718.1 of the Criminal Code, it is a "sine qua non of a just sanction": R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37. Determining what is or is not proportionate in any given situation is a task that sentencing judges across Canada engage in on a daily basis. If courts can determine what is proportionate without consulting the public, then they can determine what is grossly disproportionate without doing so.

And further at paragraphs 48 and 49:

The trial judge based her conclusion that s. 151 captures a broad range of conduct on R. v. M.B., 2013 ONCA 493, at para. 21 where Strathy J.A. (as he then was) noted in relation to the offence of sexual exploitation contrary to s. 153 of the Code that "there are infinitely variable ways in which the offence can be committed and a wide range of offenders." Section 153 has basically the same essential elements as s. 151, as well as the additional element that the accused be in a position of trust or authority to the victim or that the victim be in a relationship of dependency to the accused. It follows that if s. 153 captures a broad range of conduct, the range of conduct captured by s. 151 is even broader: Caron Barette, at para. 98; R. c. Jomphe, 2016 QCCQ 11271, at para. 60.

The appellant is correct that s. 151 creates a specific intent offence, unlike sexual assault, and the Crown must prove that the touching was for a sexual purpose. As well, s. 150.1 of the Code sets out certain exceptions in cases where the complainant consents to the touching and the accused's age is close to that of the complainant. Thus, an individual can only be convicted if the touching was for a sexual purpose and either the complainant did not consent or the accused was older than the complainant by a specified number of years. In this sense, the offence of sexual exploitation is not as broad as the offence of sexual assault. However, s. 151 applies to any touching on any part of the body.

And further:

I agree with the trial judge that a 90-day prison sentence for an unwanted kiss or attempted kiss by an 18-year old on a 15-year-old would be grossly disproportionate. I do not draw this conclusion because I think that such conduct is not serious. Despite the suggestion that the Crown would not prosecute such a case, in my view any unwanted touching of a sexual nature is serious. Whether it deserves a sentence of imprisonment is another matter. In my view, it does not.

The biggest concern with the MMS, however, is that it fails to take into account the personal characteristics of the offender. The trial judge considered two types of characteristics that could make a sentence that is otherwise appropriate grossly disproportionate: Indigenous offenders and those with mental illnesses or disabilities.

At paragraphs 72 to 75 the Court ultimately concluded that:

It is difficult to conceive of a situation in which a grossly disproportionate sentence would satisfy the proportionality requirement in the Oakes analysis, a point that was eloquently made by Doherty J.A. in the Ontario Court of Appeal's decision in R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401 (aff'd supra), at paras. 180-181:

No system of criminal justice that would resort to punishments that "outrage standards of decency" in the name of furthering the goals of deterrence and denunciation could ever hope to maintain the respect and support of its citizenry. Similarly, no system of criminal justice that would make exposure to a draconian mandatory minimum penalty, the cost an accused must pay to go to trial on the merits of the charge, could pretend to have any fidelity to the search for the truth in the criminal system.

If an argument can be made that could justify sheltering a sentence that amounted to cruel and unusual punishment under s. 1, I have not heard it.

As noted, no s. 1 argument has ever succeeded with respect to a MMS that has been found to violate s. 12. This case will not be the first.

I conclude that the trial judge was correct that the MMS in s. 151(b) of the Criminal Code infringes s. 12 of the Charter and the infringement is not saved by s. 1. Pursuant to s. 52 of the Constitution Act, 1982, there will be a declaration that the words "and to a minimum punishment of imprisonment for a term of 90 days" in s. 151(b) are of no force or effect.

[64] The reasonable hypotheticals considered in R. v. B.J.T and in R. v. Drumonde, supra, are equally applicable to the offence of sexually assaulting a person under the age of 16 years old. In light of these well-reasoned binding legal authorities that the crown referenced in his written argument, it is hard to understand the crown's position that the mandatory minimum sentence of 6 months incarceration in section 271(b) of the Criminal Code can withstand constitutional scrutiny. The ratio decidendi of these decisions are virtually indistinguishable from the constitutional challenge in this case. The very reason why the crown sought to stay the charge of sexual interference was because, while the offences may have some different elements, they often apply to the exact same delict. Arguably, sexual assault is an even broader offence because the offender does not have to specifically intend that the contact be for sexual purpose.

[65] Similarly, the Court of Appeal cited with approval the recent appellate decision of Justice Schreck in R. v. Drumonde, supra, wherein the Court struck down the mandatory minimum sentence of 90 days incarceration for sexual interference when the crown elects to proceed by summary conviction. While Courts in Ontario have not specifically addressed the mandatory minimums sentences in section 271, Courts in other provinces have found the statutory 6 months mandatory minimum sentence of incarceration to be cruel and unusual punishment.

[66] In R. v. Deyoung, [2016] N.S.J. No. 549 (N.S.Prov.Ct.J.), the Court found that a sentence above the statutory minimum in section 271(a) was not grossly disproportionate for the offender in the circumstances of the offence. The Court went on to consider various reasonable hypotheticals and considered that "sexual assault can include the least touching that affects the sexual integrity of a victim." The Court concluded at paragraph 46 that:

These are reasonably foreseeable hypotheticals, and for the notional offenders caught just outside the close-in-age exemptions, or having committed acts at the lower end of the spectrum of seriousness, the imposition of the mandatory minimum would be harsh; indeed, so excessive as to outrage standards of civil decency, and would be abhorrent and intolerable to society.

[67] In R. v. C.V.E.B., [2019] B.C.J. No. 1094 (B.C.Prov.Ct.J.), the Court determined that a conditional sentence was the just and appropriate sanction. The offender was elderly and experiencing some dementia as well as suffering with other cognitive limitations. The offender was in a position of trust. While under the influence of alcohol, he cupped his hands over the breasts of a ten year old child and touched her vagina over her clothes. He stopped when she started to cry but he offered her a bribe not to tell anyone what he had done. The court was significantly concerned about the moral blameworthiness of the offender because this was spontaneous and out of character conduct in circumstances where his conduct was influenced by his rapidly declining mental health. The court ultimately concluded at paragraphs 96 and on that:

I find that given the personal circumstances of Mr. B., a six month sentence of incarceration would be grossly disproportionate to the appropriate disposition of an eight month conditional sentence.

Consequently, I find that the six-month mandatory minimum sentence in s. 271(b) of the Criminal Code is contrary to s. 12 of the Charter that guarantees against the imposition of cruel and unusual punishment, and I decline to apply the mandatory minimum.

Are there reasonable hypothetical cases that would make the six-month mandatory minimum sentence grossly disproportionate?

Even if the circumstances in Mr. B.'s case did not result in his appropriate sentence being grossly disproportionate to the six-month mandatory minimum sentence, I do find that there are reasonable hypothetical cases that would make the six-month mandatory minimum sentence grossly disproportionate.

Crown counsel Rome Carot very appropriately submits that given the BC Court of Appeal's finding in Scofield, and the very close connection between s. 271 and s. 151, that Harris J.A.'s findings about reasonable hypothetical's in the context of s. 151 in Scofield could be applied to s. 271.

Mr. Carot goes on to appropriately concede that Harris J.A.'s reasonable hypothetical at para. 82 of Scofield could be applied in Mr. B.'s case as a reasonable hypothetical, and that Harris J.A.'s finding that the one year mandatory minimum sentence in s. 151 was grossly disproportionate to his reasonable hypothetical offender could be used to find that the six-month mandatory minimum sentence in s. 271(b) would be grossly disproportionate for the same reasonable hypothetical offender.

And further at paragraphs 102 and on:

I find that in the circumstances of the reasonable hypothetical referred to by Harris J.A. at para. 82 in Scofield, the six-month mandatory minimum sentence for sexual assault on a person under the age of 16 as set out in section 271(b) would be a grossly disproportionate sentence in contravention of s. 12 of the Charter.

The onus is on the Crown to establish that the s. 12 breach resulting from the 6 month mandatory minimum sentence set out in s. 271(b) of the Code is justified under s. 1 of the Charter. As the Supreme Court of Canada said in Nur, at paragraph 111 in relevant part:

... It will be difficult to show that a mandatory minimum sentence that has been found to be grossly disproportionate under s. 12 is proportionate as between the deleterious and salutary effects of the law under s. 1.

Mr. Carot advised the court he is unaware of any decisions where a violation of s. 12 was upheld under s. 1. He also pointed out that the Supreme Court of Canada has held on three occasions that a s. 12 breach could not be justified under s. 1: R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Nur; and R. v., Lloyd, 2016 SCC 13.

[68] I have come to the same conclusion. The reasonable hypotheticals that were already contemplated by the Ontario Court of Appeal in B.J.T, supra, and the Superior Court sitting as an appeal court in Drumonde, supra, could be applied to the offence of sexually assaulting a person under the age of 16. As a result, the mandatory minimum violates section 12 of the Charter. The crown appropriately conceded that, if I find that the minimum sentence breached section 12 of the Charter, it would not be justified pursuant to section 1.

[69] I find that the mandatory minimum sentence of incarceration in section 271(b) does not withstand constitutional scrutiny and it is not saved by section 1 of the Charter. Accordingly, I decline to apply the mandatory minimum sentence both because it would be a grossly disproportionate sentence in the unique circumstances of this case and based on a consideration of the applicable reasonable hypotheticals.

iv. The Appropriate Sentence and the Request for a 161 Order

[70] Counsel and the crown did not agree on the length of probation. Counsel requested 18 months and the crown requested 3 years of probation. This offence has had a significant impact on the victim and her family. Mr. Kirby impulsively sexually assaulted a small child and he has no insight into his conduct. I agree with the crown that a lengthy probation order is necessary to specifically deter Mr. Kirby from committing further offences and it will ensure that the B. family feels supported and protected from further harm. It is also essential to ensure that Mr. Kirby receives rehabilitative counseling to address this offending behaviour.

[71] The sentence for the sexual assault is one of 20 days pretrial custody or the equivalent of a 30 day sentence and a suspended sentence with a period of probation of 3 years. In addition, there will a SOIRA order for 10 years as well as a DNA order. The balance of the pre-trial custody of 8 days or the equivalent of 12 days consecutive will be attributed to the breach charge with a suspended sentence and a concurrent probation order.

[72] The crown and counsel submitted that a ten year section 161 order is necessary however, neither one of them made any submissions about the evidentiary basis for this order or suggested curtailing the terms considering the unique facts in this case. Courts cannot make such a significant order without consideration of the facts. It is a discretionary and punitive sanction that requires a measured approach. The liberty interests of the offender may be restricted for a substantial period of time as a result of this order. The Ontario Court of Appeal recently provided the following guidance in R. v. Schulz, 2018 ONCA 598, [2018] O.J. No. 3526 about when a court should exercise this discretion:

The overriding protective function of s. 161 of the Criminal Code is to shield children from sexual violence: R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 44. An order under s. 161 constitutes punishment and is not available as a matter of course: there must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; and, the content of the order must respond carefully to an offender's specific circumstances: K.R.J., at paras. 48-49. [emphasis mine]

[73] Similarly, in R. v. Brar, [2016] ONCA 724, the Ontario Court of Appeal carefully reviewed the Supreme Court of Canada's decision on section 161 orders in R. v. J. (K.R.), 2016 SCC 31, [2016] S.C.J. No. 31 and explained at paragraphs 17 and 18 that:

In J. (K.R.), the majority of the Supreme Court confirmed that orders made under s. 161 have a predominantly protective purpose, that is, to shield children from sexual violence (at para. 44).

The Supreme Court emphasized that these orders are discretionary and flexible, as s. 161 "was designed to empower courts to craft tailored orders to address the nature and degree of risk that a sexual offender poses to children once released into the community" (at para. 47). Because these orders can have a significant impact on the liberty and security of offenders and can attract a considerable degree of stigma, they will be justified where the court is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk the offender poses to children (J. (K.R.), at paras. 48, 54). The terms of such orders must, therefore, "carefully respond to an offender's specific circumstances" (at para. 48).

[74] I cannot make this order without an evidentiary basis to decide that Mr. Kirby poses an ongoing risk to children. Neither counsel or the crown explained why a ten year order was necessary. I do not have any psychiatric or psychological evidence about what risk, if any, Mr. Kirby poses in terms of reoffending. The offence itself was momentary, seemingly impulsive and almost inexplicable in the absence of any reported history of sexually inappropriate behaviour towards anyone, either an adult or children.

[75] Without a formal risk assessment, I am left with deciding whether to make this order based on limited information. Nevertheless, I find there is sufficient evidence to make the order. The nature of the offence itself was relatively minor, brief and opportunistic but, Mr. Kirby purposefully and spontaneously violated the sexual integrity of a small child who was a stranger to him. It was a brazen act. He only stopped touching the child because he was interrupted by an adult. He has no insight into his conduct since he continues to deny the offence. In addition, the facts of the breach of Mr. Kirby's bail were alarming. Mr. Kirby attended the apartment building where I.B. resided shortly after being arrested and released on terms not to attend that specific place and, after he left the building, he attended a nearby park and watched children playing. Considering that he was just released on bail for sexually assaulting a child, it is very concerning that he went to a park and watched children.

[76] There has to be an order in place to protect other little children from any further impulsive sexual behaviour by Mr. Kirby, but that order must be carefully crafted to respond to the unique circumstances of this offender and this offence. In addition, considering the impact that this offence has had on I.B. and her family, it is very important to provide them with the ongoing assurance that there is a court order prohibiting Mr. Kirby from being near their child or any other child unless he is directly supervised by an adult.

[77] The crown requested a section 161 order of 10 years in duration. Counsel did not oppose this request, but this was not a joint submission with respect to the sentence. Moreover, neither of them articulated an evidentiary basis supporting why such a lengthy and restrictive order is necessary. Balancing the impact on the liberty interests of Mr. Kirby and the importance of protecting other little children from any further impulsive sexual misconduct, a section 161 order for a period of five years is necessary.

[78] The terms of the section 161 order have to be tailored to the offender's specific circumstances. Considering Mr. Kirby's reliance on community outreach workers, his cognitive limitations and his need for ongoing community support, I have purposefully removed community centres from the section 161 order. In addition, to address the victim impact, the remain away from term with respect to I.B. will be extended to include her place of education. Accordingly, for the next five years, Mr. Kirby will be bound by a section 161 order that prohibits him from:

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare center, schoolground or playground except while he is directly supervised and in the continuous company of an adult over the age of 25 years old;

(a.1) being within 250 meters of any dwelling-house where I.B. is known to ordinarily reside or where I.B. is known to attend school;

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

(c) having any contact — including communicating by any means — with a person who is under the age of 16 years except while he is directly supervised and in the continuous company of an adult over the age of 25 years old or except for brief incidental contact during commercial transactions.

D. Conclusion

[79] I have released these reasons electronically to the crown and defence counsel more than a week in advance of the formal sentencing. This extra time is intended to provide Mr. Kirby's counsel and his support team with an opportunity to read the judgement to him and give him the opportunity to mentally process all of the information and the court orders prior to the sentence being formally ordered on the next appearance.

[80] In summary, I find that the mandatory minimum sentence of 6 months incarceration in section 271(b) of the Criminal Code for sexually assaulting a person under the age of 16 violates section 12 of the Charter and is not saved by section 1. Accordingly, while I do not have the authority to declare the provision of no force and effect, the remedy is to render a sentence unconstrained by the statutory minimum.

[81] Mr. Kirby will be sentenced as follows:

Sexual assault:

• 20 days pre-trial custody to be the equivalent of 30 days
• A suspended sentence and 3 years of probation with the terms and conditions attached in Schedule I
• 5 year section 161 order with the terms as set out above in paragraph 78
• A 10 year S.O.I.R.A. order
• A D.N.A. order

Breach of recognizance:

• 8 days pre-trial custody to be the equivalent of 12 days consecutive
• A suspended sentence and 3 years of probation concurrent with the terms and conditions attached in Schedule I
• A D.N.A. order

[82] The crown indicated that he was not seeking a weapons prohibition order pursuant to section 110 of the Criminal Code even though it is an available discretionary order. I will however prohibit Mr. Kirby from possessing weapons as a term of probation. In addition, this offence predates the recent changes in the legislation relating to victim fine surcharges. As a result, I decline to make that order.

Schedule I – Terms of the Probation Order

Statutory Conditions

• Keep the peace and be of good behavior;
• Appear before the court when required to do so;
• Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation

REPORTING

• Report in person to a probation officer:
  • today
  • and thereafter at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision
  • you must cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer upon request

NO CONTACT AND NOT ATTEND

• Do not contact or communicate in any way, directly or indirectly, by any physical or electronic or other means with I.B. or any member of her immediate family;
• Do not be within 250 meters of any place where you know I.B. to live, work, go to school, frequent or any place that you know I.B. to be;

EXCEPT

• While attending at required court appearances;

NO CONTACT WITH MINORS

• Do not have any contact — including communicating by any means — with a person who is under the age of 16 years except while directly supervised and in the continuous company of an adult over the age of 25 years old or except for brief incidental contact during commercial transactions.

WEAPONS AND PERMITS

• Do not purchase or possess any weapons as defined by the criminal code

COUNSELLING AND TREATMENT

• Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your probation officer and complete them to the satisfaction of your probation officer including but not limited to:
  • Life skills;
  • Psychological or psychiatric counselling; and
  • Counselling for sexual boundaries and inappropriate touching of children;
• You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed;
• You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed