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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct 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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, 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: November 29, 2017

Court File No.: Kirkland Lake OCJ 4111 998 15 5460

Between:

Her Majesty the Queen

— and —

JG

Before: Justice D.A. Thomas

Heard on: January 23, 2017; June 29, 2017

Delivered Orally on: August 17, 2017

Released: November 29, 2017

Counsel

James Rumleskie — counsel for the Crown

John Saftic — counsel for the accused

Decision

Reasons for Sentence

Justice Thomas (orally):

[1] For reasons provided on June 29, 2017, JG was found guilty of the offences of sexual interference, section 151, invitation sexual touching, section 152, and sexual assault, section 271, of the Criminal Code, between May 15th and June 30th, 2015. Further to the rule against founding multiple convictions arising from the same delict, the findings of guilt in relation to the offences of sexual assault and sexual interference will be conditionally stayed.

[2] JG, accordingly, appears before the court today to be sentenced on one count of invitation to sexual touching.

[3] In providing reasons for the finding of guilt back on June 29th the court identified the full names the parties, and will be doing so again during these reasons for sentence. Having regard however, to the section 486.4 order and the fact that this is a small community, for the purposes of the record and any other publication, only their initials will be used.

[4] JG pled not guilty to the offences on the basis of a two pronged constitutional challenge the legislation, pursuant to sections 7 and 12 of the Charter.

[5] The matter proceeded before the court by way of filing an agreed statement of fact, so as to obviate the need for the complainant having to testify, (exhibit # 1 in the proceedings). In addition to the agreed statement of fact, the court was provided with the videotaped interview of the JG upon his arrest (exhibit # 2) and few further ancillary facts presented by the counsel during their arguments. The essential facts have never really been in dispute, and have now been further fleshed out in the very helpful presentence report. I will review them again at this time.

The Facts

[6] KV and the accused JG were both teenagers attending the same high school in K.L. during the 2014-2015 school year. She was 14 years old and in her first year of high school, while he was 19 years of age and in his last of high school. The accused was born on […], 1995; KV, on […], 2000, creating a five-year and 35 day age difference between them.

[7] They began what is described as a romantic boyfriend-girlfriend relationship in the latter part of school year, around March 20, 2015. The relationship was open and obvious. It eventually evolved to their engaging in acts of sexual intercourse a couple of months later, between May 15th and June 15th, 2015. These sexual encounters have been described, and it is agreed and so found, to have always been consensual and respectful and devoid of any exploitive behavior. There was no hint of exploitation or coercive conduct on the part of accused, JG. There was no suggestion of undue influence, persuasion or manipulation on the part of JG to have KV engage in sexual activity.

[8] It is agreed that sexual intercourse occurred on more than one occasion. The court can accordingly, only conclude, with certainty, that it occurred on at least two occasions during the short temporal window set out in the information, between May 15th and June 15th 2015.

[9] When KV's parents learned of sexual nature of the relationship, they made a formal complaint to the K.L. O.P.P who charged then the defendant, JG, with the offences in question.

[10] Upon his arrest, JG was fully cooperative with investigators and provided them with a candid confession as captured in exhibit 2, his inculpatory video statement. As noted in the presentence report, the investigating officer Constable Gauthier, describes him as being, "Completely cooperative and forthcoming during the investigation." His admissions during that interview can be summarized as follows:

[11] He admits being cognizant of his "girlfriend's age". He acknowledges dating KV for about a month or so, and that, "as far as I knew, her parents were okay with us being together." While they could not of course, consent on her behalf, as far as he knew, KV's parents, "were okay with the relationship". He advised he in fact met her mother around mid-April.

[12] He then admits at some point after meeting with KV's mother, "We were hanging out together and – everything happened, we had sexual intercourse and we used a condom."

[13] JG advised the police he then also met KV's father, around May 22nd, 2015 and her father asked him to discontinue his romantic relationship with his daughter. He advised he saw her, "a couple times after that" — but that the sexual nature of the relationship had ceased after the father approached him. There is nothing to suggest that is untrue.

[14] As mentioned during my reasons in dismissing the section 7 Charter application and registering findings of guilt, Counsel could not agree as to whether JG knew it was illegal to be having sexual relations with KV by virtue of the difference their age. It was proposed that the court could resolve this issue after considering JG's police interview. I have however, reviewed the statement (exhibit #2) and determined that I could not come to any conclusion in this regard.

[15] While irrelevant to his guilt, JG advised police, upon his arrest, that he had only recently learned that such conduct was prohibited in law, that is, after the fact. He acknowledged knowing that he was in fact, five years older than KV, but only learned that having sex with someone that much younger than himself was illegal from some classmates and or after doing some online research. Absent further evidence or submissions of counsel, the court was not prepared to find on the basis of what had been presented, that the accused knew this conduct was prohibited in law at the time it occurred.

[16] Notwithstanding her parents' understandable concern and upset upon learning of the sexual nature of their relationship, it is agreed that the complainant, KV, was very reluctant to cooperate with the investigation, and indeed remains strongly opposed to the accused being convicted of any sexual offences, and certainly to his being sentenced to custody.

[17] She remains very close to JG's family. Indeed as noted in the presentence report, she has in fact, become 'part of their family'. Subsequent to the termination of her relationship with the accused JG as a result of his being charged, KV commenced a common-law relationship with his younger brother. They remain together to this day, and have since had a child together, now aged five months. She is the accused's niece, and he loves and cares for her.

[18] KV has suffered no apparent adverse effects, no emotional or psychological sequelae as a result of JG's conduct. As noted in the presentence report "The victim stated she did not suffer any ill effects from her sexual involvement with subject …." Again to quote KV and her parents, from presentence report, "the victim does not feel at all victimized in this matter!"

[19] These were the facts presented, and so found by court, in finding JG guilty, and upon which the sentencing must accordingly be based.

Positions of the Parties

[20] In finding the accused guilty, the court, for the reasons given, dismissed JG's section 7 Charter argument contending that his liberty interests were infringed by the combined operation of the consent limiting provisions of section 150.1, and the mandatory minimum sentences dictated by sections 151, 152 and 271. He had advanced the ostensibly compelling argument that the application of these sections, to the very unique facts of this case, would impinge his constitutionally guaranteed liberty interests, and that the court should accordingly refuse to apply them and find him not guilty.

[21] In short, he argued that by section 150.1 depriving him of the defence of consent in these clearly established circumstances of consensual, non-exploitive, sexual contact, simply on account of his being a mere 35 days beyond the close in age exception, and thereby ensuring his imprisonment, that his section 7 rights to liberty were infringed.

[22] Framed another way, should the effluxion of a mere 35 days, vitiate KV's clear consent and eliminate what would otherwise be a complete defence? Does otherwise, absolutely, legally acceptable behavior, become criminal simply on account of one of the participants having a birthday a month too soon, or the other, a month too late? I determined with some reluctance that it did.

[23] In arriving at that decision the court was instructed by the helpful analysis and direction from our Court of Appeal in the decision of R. v. AB, 2015 ONCA 803, which case decisively addressed the section 7 Charter challenge to the constitutionality of section 150.1, in what were remarkably similar circumstances to the case at bar. AB was heard by the Court of Appeal on April 27, 2015, just prior to accused engaging in the conduct for which he is being sentenced, and was released on November 23, 2015, four months after he had been charged, which parallel timeframe is of some significance.

[24] The Court of Appeal dealt squarely with the section 7 challenge to section 150.1 and it's clear, five year near in age limit on the defence of consent for non-exploitative sexual contact with individuals under the age of 16, and upheld the constitutionality of that section. At paragraph 39 the Court noted:

In order to achieve the objective of protecting children, the means Parliament chose was to draw a bright-line age of protection of 16 years and to carve out a five-year close-in-age exception for non-exploitative conduct, where the defence of consent would be available.

[25] Were it not this bright line age of protection and its equally bright line, concomitant, near in age exception – the Crown argued and the court agreed, that accused persons might successfully argue that there is no way of knowing when they were at risk, and ironically, challenge the law under section 7 – as being unconstitutional for vagueness.

[26] It could otherwise require a painstaking, case by case analysis assessing a myriad of variables, such as the maturity and emotional makeup of the particular complainant, just how near in age he or she was, the absence or presence of any type of exploitative behavior, whether there was any apparent approbation by parents, the nature and extent of the offending conduct, etc. These bright lines are, accordingly, absolutely essential to govern such circumstances.

[27] In following AB and providing my reasons for finding JG guilty, and dismissing his section 7 Charter challenge, I suggested that he was perhaps blending his life, liberty and freedom interests, with his section 12 constitutional rights, not to be subjected to cruel and unusual treatment or punishment – in other words, conflating rights around guilt or innocence – with his rights around punishment and penalty. Having dealt with the section 7 Charter challenge, the discrete issue of penalty and any section 12 impingement, is now therefore appropriately before the court, when determining what is fit sentence in these circumstances?

[28] The Crown and Defence are far apart in their submission as to what would be a fit sentence in this case, with the Crown urging the court to impose the 90 day minimum sentence of imprisonment as mandated by the Criminal Code, and Counsel for the defendant contending that the appropriate sentence would be a conditional discharge.

[29] At the time the facts in R. v. AB arose, which facts I will discuss shortly, there was no mandatory minimum sentences in force for offences such as these. When the judgment was released in November 2015 however, the mandatory minimum sentencing regime for offences such as these had come into force. AB received a conditional discharge, which disposition was specifically recognized by the Court of Appeal in a footnote appended to the judgment.

[30] While the court in R. v. AB appeared to acknowledge the defendant's argument that his section 7 liberty interest was infringed in light of the potential penalty of incarceration upon conviction, it was well aware that he had in fact received a conditional discharge on sentence, which disposition the Crown did not appeal. The issue of punishment and potential section 12 impingement therefore, was not before the court, and more specifically, the mandatory minimum penalties were not in force and accordingly, not considered by the court in that ruling.

[31] As fairly acknowledged by the Crown in its materials, since R. v. AB, a number of Superior Court decisions in Ontario have struck down the mandatory minimums imposed by sections 151, 152, & 271, as being unconstitutional; R. v. Taylor, 2016 ONSC 6616 and R. v. Laviolette, 2016 ONSC 7082; other courts have upheld them.

[32] Both counsel agree that the Supreme Court's decision in R. v. Lloyd, [2016] 1 SCR 773, empowers the provincial court with the authority to act as the accused is urging, that is, decline to apply a law that it finds unconstitutional. Chief Justice McLachlan writing for the majority provided, at paragraph 15:

The law on this matter is clear. Provincial court judges are not empowered to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982; only superior court judges of inherent jurisdiction and courts with statutory authority possess this power. However, provincial court judges do have the power to determine the constitutionality of a law where it is properly before them.

And later at paragraph 19:

The effect of a finding by a provincial court judge that a law does not conform to the Constitution is to permit the judge to refuse to apply it in the case at bar.

This is what the defendant JG is asking the court to do on this sentencing.

[33] In determining whether a section 12 challenge should prevail, the court must engage in a two-step analysis as directed by the Supreme Court in R. v. Nur, 2015 SCC 15, at para 46:

First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. Then, the court must ask whether the mandatory minimum 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 provision is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter.

[34] The Court has carefully reviewed the provisions of section 718 of the Criminal Code regarding the purposes and fundamental principles of sentencing as enumerated in sub-sections (a) through (f), and has considered their application in this case. In addition to section 718, the court has had the benefit of guidance from the Supreme Court in R. v. Morrissey, 2000 SCC 39, which outlined a number of factors to assist trial judges in determining whether a mandatory minimum sentence is proportionate in the particular circumstances of the case before it; factors including:

1. the gravity of the offence;
2. the personal characteristics and circumstances of the accused;
3. the particular circumstances of the case in order to determine what range of sentences would be appropriate;
4. the actual effect of the punishment on the individual;
5. the penological goals and sentencing principles;
6. a comparison of punishment imposed for similar crimes in the same jurisdiction.

The Gravity of the Offence

[35] As regards the penological goals, sentencing principles and the gravity of the offence, the court is acutely aware that the sexual abuse of children is particularly heinous and is to be strongly denounced, which is no doubt why Parliament enacted section 718.01:

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[36] There can be no doubt that there is a rational connection between the mandatory minimum sentences in question and the objective of protecting children from sexual abuse. They are consistent with valid penological goals and appropriate in the vast majority of cases and serve an important societal interest. In the case at bar however, the conduct being punished occurred within the context of a loving, respectful, romantic relationship between two teenaged highschool students.

[37] There was no hint of exploitation or coercive conduct on the part of accused, JG. There was no luring or grooming, no suggestion of undue influence, persuasion or manipulation exerted by JG on KV to engage in sexual activity. The complainant, KV, suffered no emotional or psychological sequela as a result of this relationship. As noted by the author of the presentence report, who consulted the complainant's stepmother, and was advised, "[my] daughter did not suffer any ill effects from her sexual involvement with the subject …." These are I believe rather unique circumstances that would attenuate the gravity of the offence in this particular case.

The Personal Characteristics of the Accused

[38] The accused is a youthful first offender. He presents as a rather quiet, introverted young man. The court has been provided with what must be characterized as a very positive presentence report, which report described his excellent antecedents including: his having worked full time for the last five years with the same employer, while obtaining his Ontario Secondary School diploma; his strong ties to his pro social family and their values; his volunteer work within the community; and his plans to continue his education by attending college within the next several weeks, in the event he is not incarcerated.

[39] The author of the presentence report describes him as being, "polite respectful and forthcoming with information". Police investigators described him as being "cooperative and forthcoming during the investigation". He has continued to demonstrate genuine remorse throughout the investigation and ensuing proceedings. As has been fairly acknowledged by the Crown attorney, JG spared the complainant from testifying in court by proceeding with an agreed statement of fact.

[40] While a mother's love is certainly exceptional and prone to partiality, JG's mother nevertheless describes him as, "….generous to a fault and easy-going with a kind heart. He was never in trouble at school and he is responsible and committed with his employment, always going in if they call him."

[41] There was a somewhat curious observation in the presentence report that he had accumulated a rather staggering $4,000.00 cellphone debt that he was working to pay off. The court learned today that this debt arose because JG felt constrained to help out friends, a family of four, who could not afford, or did not have the credit ratings to qualify for their own cellphone plans. He agreed to co-sign for them so they could purchase their own four phones. Unfortunately, they defaulted on their payments, leaving him holding the bag and he has assumed their debt. I suppose this is somewhat of testament to his mother's observation that he is 'generous to a fault with a kind heart'.

[42] The presentence report confirms that there are no concerns or history regarding substance abuse, alcohol or addictions, and concludes:

The subject does not appear to have any significant issues or particular needs that would indicate he presents a risk for recidivism in the future. No recommendations are being made as the information gathered for this report has not revealed any significant areas of concern for the subject to address.

The Particular Circumstances of the Case

[43] As discussed in reviewing the facts of the case, the complainant KV was strongly opposed to the police investigation and ensuing charges against the accused, JG. As noted by the complainant's stepmother, she was very distressed over the charges being laid against JG, and indeed suffered some depression as a result of the investigation, the criminal charges being laid, and consequent termination of their relationship.

[44] Unlike all the other cases the court has reviewed in anticipation of this sentencing, where the complainant has suffered emotional distress as result of the accused's conduct, neither KV nor her parents are claiming that to the situation in her case. Indeed, they advise that the only emotional distress she suffered was as a result of the state prosecuting JG. To again quote from the presentence report, as per comments received from both the victim and her stepmother, "The victim does not feel at all victimized in this matter".

[45] As stipulated in the agreed statement of facts, Exhibit 1, it is most obvious that KV did not want to see JG convicted of any criminal offences, and she certainly does not want to see him go to jail. It is no secret that she would have been an extremely reluctant, if not completely uncooperative witness, and one wonders how the trial may have played out, had JG not consented to proceeding by way of an agreed statement of fact?

[45a] But for a mere 35 days, JG would have had a complete defence at law to these charges pursuant to section 150.1 of the Criminal Code. As noted in finding him guilty, however, the effluxion of 35 days between the expiration of the five year near-in-age exception and KV's birthday, placed him over the bright line Parliament has created, notwithstanding her ongoing opposition to the prosecution, and her unreserved support of the defendant. As will be discussed shortly, however, the circumstances of this case are arguably, in and of themselves, representative of a reasonable hypothetical, with the defendant being on the extreme outer periphery of criminality.

The Actual Effect of Punishment on the Individual

[46] These charges have been hanging over the JG's head now for over two years, since his having been arrested on July 2, 2015. No doubt, as confirmed when asked if he had anything to say prior to the court imposing sentence, this has been an extremely stressful and distracting burden, especially given the imminent specter of imprisonment. Notwithstanding this distraction he has maintained full-time employment, obtained his Ontario secondary School diploma and is planning to enroll in college in several weeks.

[47] While a first time youthful offender like JG, in these circumstances, would doubtless find a sentence of imprisonment to be exceedingly harsh at any time, such a sentence would apparently prove particularly devastating to him at this point in time. His plans for college would be delayed, yet again for another year, he would lose several months' wages, and quite conceivably, the employment he has worked so hard to maintain for the last five years. As noted by his mother in the presentence report:

The subject's mother, confirmed a mandatory minimum sentence would have serious ramifications on the subject's finances and schooling opportunity, but also added there would be some negative impact on the family unit, who are presently all getting along well. She is also concerned about his being incarcerated as he is not well suited for that environment and fears this would destroy his spirit…

A Comparison of Punishment Imposed for Similar Crimes in the Same Jurisdiction

[48] Section 718.2(b) of the Criminal Code provides:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

[49] In this regard, Crown counsel has attempted to assist the court by providing a number of sentencing cases involving the sexual abuse of young females. If nothing else, these cases serve to demonstrate the daunting challenge in identifying a definitive sentencing range for cases similar to the one at bar. No doubt this challenge is caused in large measure by the wide array of criminal conduct captured by sections 151 152 and 271 of the Criminal Code.

[50] A review of the cases the crown has presented demonstrates this challenge:

[51] In R. v. BJT, 2016 ONSC 6616, a decision of the Superior Court of Justice, the accused who suffered cognitive deficits, shaved his 13 year old daughter's pubic hair on two occasions, with her apparent approval, while making sexual comments. He digitally penetrated her on one occasion to remove a pubic hair. These actions ultimately left her emotionally traumatized. There was a trial and the crown proceeded by indictment, and there was no de facto consent and no certainly close to the line, near in age exception. The court nevertheless struck down the twelve-month minimum sentence, and imposed nine-month term of imprisonment. There are no similarities between this case and that of JG.

[52] R. v. Laviolette, 2016 ONSC 7082, is another case where the Crown proceeded by indictment in circumstances involving a 50-year-old accused and 15-year-old complainant. The accused fondled the complainant's bare breasts. In finding the accused guilty after trial, the court characterized it as a serious breach of trust that left the victim emotionally traumatized. Again, obviously no de facto consent, no near in age considerations, nor remorse. The court nevertheless struck down the twelve-month mandatory minimum and imposed a sentence of nine months' imprisonment. There is certainly no similarity between this case and that of JG.

[53] In R. v. FC, 2016 ONSC 6059, the crown proceeded in by indictment in this case involving an 82-year-old grandfather who had intercourse with his four-year-old great granddaughter. Upon conviction following a trial, the Court imposed a 9 month custodial sentence. There is certainly no similarity between this case and that of JG.

[54] In R. v. SA, 2016 ONSC, the Crown proceeded by indictment on charges of sexual interference involving the defendant's 14-year-old stepdaughter. He engaged in improper sexual touching of the victim's vaginal area while she was asleep and vulnerable. He was convicted following a jury trial. The court found this conduct to be a serious breach of trust that left her emotionally traumatized and imposed a 90 day jail sentence. There was clearly no de facto consent and no near in age considerations. There is no similarity between this case and that of JG.

[55] R. v. CF, OJ No 2752, is the only case from the Ontario Court of Justice. The 18-year-old of defendant was convicted after trial of fondling a 12-year-old victim during a sleep over and forcing her to masturbate him. She was a family friend and these actions were characterized as serious breach of trust that caused the victim to suffer serious emotional distress. There was no de facto consent. The court found the mandatory minimum sentence to be disproportionate, but not grossly disproportionate, and imposed the 90 day minimum sentence. Again, apart from the defendant's age, it is difficult to see any similarity between this case and that of JG.

[56] The remaining cases presented by the crown have us leaving Ontario and considering decisions from our western provinces.

[57] R. v. EMQ, 2015 BCSC 201, is a decision of Supreme Court convicting a 21-year-old accused after trial of fondling his 14-year-old babysitter's breasts and vagina while she was sleeping. The court found it to be a breach of trust that was aggravated by the fact the accused was bound by recognizance not to communicate with the victim or be within 100 meters of her. There was no de facto consent and the court found the mandatory minimum sentence to be disproportionate, but not grossly disproportionate. There is really no similarity between this case and that of JG.

[58] In R. v. Norton, 2016 MBCA 79, a decision of the Manitoba Court of Appeal, the 20-year-old accused lured a 15-year-old complainant to his residence where he and a friend engaged her in a threesome. The victim was severely psychologically traumatized to the point of being hospitalized on several occasions for suicidal ideation. The victim impact statement stated that the accused's actions had "destroyed her and her family's lives." The accused had 17 prior convictions, and was being sentenced to other serious offences such as possession of firearm and criminal harassment at the time. Again, apart from the defendant's age, it is difficult to see any similarity between this case and that of JG.

[59] In R. v. Hajar, 2016 ABCA 222, the Alberta Court of Appeal sentenced a 20-year-old accused to 18 months' imprisonment in circumstances where over two months, he had engaged in online luring and grooming of the 14 year old complainant. He had persuaded her to send him naked pictures of herself, then manipulated her into performing fellatio. The court was critical of the accused's victim blaming in circumstances where she suffered serious emotional consequences. Again, apart from the defendant's age, it is difficult to see any similarity between this case and that of JG.

[60] R. v. Whiting, 2013 SKCA 101, is a decision from the Saskatchewan Court of Appeal. The 20-year-old accused pled guilty to sexual assault after engaging in online luring and manipulation of a 14-year-old complainant, arranging to meet her for the first and convincing her to have sexual intercourse in his car. She was extremely psychologically traumatized by the events and fell into severe depression, engaging in self-mutilation as a result of the accused's conduct. The court imposed a 14 month sentence. Apart from the defendant's age, it is difficult to see any similarity between this case and that of JG.

[61] Moving back then to Ontario, R. v. AB, 2015 ONCA 803, released by the OCA after JG was charged is unquestionably the most instructive case when considering the section 718.2(b) direction that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances."

[62] AB received a conditional discharge in circumstances which while similar, were arguably much more serious than those in the case before the court. The defendant AB was a full six years older than the complainant, a full 12 months beyond the near in age exception. The complainant suffered significant emotional trauma as a result of the ongoing, one year sexual relationship which culminated in her pregnancy, and AB's approbation of her resulting abortion, only to then immediately abandon her.

[63] He pled not guilty, forcing her to endure the additional trauma of having to testify at trial, and to have her credibility vigorously questioned and critically commented on by the trial judge who disbelieved her evidence that AB had taken advantage of her. It is of note that the Court of Appeal appeared to chasten the trial judge for failing to appreciate the apparent, inherent power imbalance existing between AB and the complainant.

[64] While it is true that the appropriateness of AB's sentence was not before the Court of Appeal and that the mandatory minimum sentencing regime was not in force, the court cannot help but compare the circumstances of that case, with the case before it, and then contrast the vastly disparate dispositions proposed by the prosecution.

Comparison Table

Factor	AB	JG
Age difference	Met complainant when she was 11, and a full six years older than she was.	Met complainant when she was 14, five years and 35 days older than she was
Nature of relationship	OCA found that complainant clearly suffered psychological harm from sexual relationship, resulting pregnancy, abortion and abandonment	Complainant and her parents maintain that she has suffered no emotional or psychological harm, and she remains close to JG's family
Extent of illegal activity	Dated for close to a year, frequent sexual activity	Dated for three or four months, sexual activity on more than one occasion
Demonstration of Contrition	AB pled not guilty forcing complainant to testify and vigorously challenged her evidence	Complete cooperation with authorities, inculpatory statement, and Agreed statement facts
Relationship at trial	AB abandoned complainant immediately after abortion	Complainant continues to be a part of the defendant's family
Sentence	Conditional discharge	90 days imprisonment?

Analysis

[65] The court is most mindful of the recent direction from the Supreme Court in the case of R. v. Lloyd, 2016 SCC 13, paragraph 24:

This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment. 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: Smith, at p. 1072, citing Miller v. The Queen, [1977] 2 S.C.R. 680, at p. 688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14. The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate.

[66] In all the circumstances, having regard to the facts of this case, including the nature and context of the offences, the circumstances of the offender, and the sentence imposed in the most similar case, the court is of the view that a proportionate sentence for JG would be that of a suspended sentence, or noncustodial disposition, and that he be placed on probation for 12 months. To impose a 90 day sentence of imprisonment, as mandated under section 152 in this particular case, would be not only excessive, and disproportionate, but grossly disproportionate and in violation of his section 12 of Charter rights, and the court accordingly declines to do so.

[67] Having determined that the imposition of the mandatory minimum 90 days incarceration would be grossly disproportionate in the particular circumstances of this case, and this offender, the court need not necessarily consider whether it would also prove grossly disproportionate to other persons in reasonably foreseeable situations.

[68] In the event however I am wrong in this analysis, I do feel constrained to consider the reasonable hypotheticals advanced on behalf of the accused in support of his section 12 challenge.

[69] Counsel for the defendant has posited two reasonable hypotheticals:

"The first involves a first-time offender who has a girlfriend who is 15 years old and he is five years and one day older than her. They have sexual relations and her parents contact the police."

"The second hypothetical deals with another first-time offender involved in sexual relations with his girlfriend aged 15, and he is also five years and day older than her and he's aboriginal."

[70] The Court finds that these hypotheticals do not really add much to JG's own particular case at bar. One day over the five year the near in age exception or 35 days over the near in age exception, does not really make much of a difference in the analysis. Neither would the offender being of aboriginal heritage, even having regard to the Gladue sentencing principles.

[71] It has been said that all Charter cases can in effect be viewed as reasonable hypothetical cases. That is particularly true of the case at bar. The very sympathetic or attenuated factual circumstances, combined with its teetering on the temporal borderline of a complete near in age defence, make this case one where the imposition of a 90 day jail sentence for a young first-time offender on the margins of criminality and of moral blameworthiness, is in and of itself a reasonable hypothetical.

[72] As observed by the Supreme Court in R. v. Lloyd, the wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate.

[73] If for example by way of a variation on the facts of this case, one could easily imagine a much less intrusive scenario where KV's parents had arrived home unexpectedly and observed their daughter and the defendant kissing and engaged in some mutual over the clothing petting. That conduct would equally constitute a sexual interference, invitation to sexual touching and sexual assault. They are upset and contact the police who charge him with offences under sections 151, 152 and 271. Section 150.1 would vitiate any consent, and JG would be facing a minimum 90 day jail sentence, (or six months under s. 271) which would surely be grossly disproportionate to his moral culpability in the circumstances of their relationship and respective ages.

[74] For the reasons noted, the court finds that the mandatory minimum sentence would be grossly disproportionate, not only in particular facts of this case, but in an easily conceived, reasonable hypothetical emanating from it.

Disposition

[75] In the result, the sentence of court will be as follows. The passing of sentence will be suspended and you will be placed on probation for a period of twelve months. In addition to the statutory terms to keep the peace and be of good behavior, appear before the court when required to do so, and notify your probation officer of any change of name or address, you will report to probation within three days, and thereafter as directed by your supervisor.

[76] You will perform 25 hours of community service to the satisfaction of your supervisor. You will maintain suitable employment, and, or, continue with your education as you have indicated you intend to do, and provide copies of your progress reports to your officer. Do you understand these conditions? That will be the sentence of the court.

[77] You will provide a sample of your DNA to the K.L. O.P.P. within 24 hours.

[78] You will be subject to a Sex Offender Information Registration Act (S.O.I.R.A) order for a period of ten years.

[79] The court is satisfied that having regard to principles of sentencing, including the requirements of denunciation and deterrence as set out in section 718.01, that having had this matter hanging over your head for some two years, having to now contend with the stigma of a conviction for invitation to sexual touching in the unique circumstances of this case, having to provide a sample of your DNA, being subject to a probation order for 12 months and a S.O.I.R.A. order for ten years, all combine to provide the denunciation required, and constitute a fit and appropriate sentence.

[80] Thank counsel for their excellent materials and submissions on this rather unique and somewhat challenging case.

Released: November 29, 2017

Signed: Justice David A. Thomas