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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 212, 212, 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: 2018-04-25

Court File No.: Toronto

Between:

Her Majesty the Queen

— AND —

Kayla Drumonde

Before: Justice L. Pringle

Heard on: February 13, 2018

Reasons for Judgment: Released to the parties on April 5, 2018; in court April 25, 2018

Counsel:

• Mr. R. Nathanson and Ms. G. McLoughlin — counsel for the Crown
• Ms. A. Ross — for the defendant Kayla Drumonde

Ruling re Constitutionality of s.151(b) of the Criminal Code

1. Introduction and Overview

[1] Kayla Drumonde and Kevin Chan were found guilty after trial of sexual assault and sexual interference. On consent of both Crown and Defence, I stayed the charge of sexual assault and the case has proceeded to sentence against each of Ms. Drumonde and Mr. Chan on the charge of sexual interference only. The Crown proceeded summarily, and accordingly, the mandatory minimum penalty is 90 days in jail.

[2] Sentencing of Ms. Drumonde is being dealt with first, as Ms. Drumonde challenges the constitutionality of the mandatory minimum sentence set out in s.151(b). The Defence submits that a sentence of 90 days would be a grossly disproportionate sentence in Ms. Drumonde's case, as well as in the case of a reasonable hypothetical offender, and therefore violates s.12 of the Charter. The Defence says a conditional discharge with 3 years of probation is the appropriate sentence.

[3] The Crown seeks a sentence of 90 days intermittent for Ms. Drumonde, along with a number of ancillary orders. The Crown submits the legislation is constitutional.

[4] I have determined:

1. The 90 day mandatory minimum sentence in s.151(b) does not violate s.12 of the Charter in the particular circumstances of Ms. Drumonde's case; however,

2. The 90 day mandatory minimum sentence does violate s.12 of the Charter as applied to reasonably foreseeable applications (a reasonable hypothetical offender);

3. The violation cannot be saved under s.1 of the Charter;

4. Accordingly, for the reasons set out in section 6.4 of these reasons below, Ms. Drumonde is sentenced to a conditional sentence of 45 days jail to be served in the community, followed by 3 years of probation; in addition to a DNA order and a SOIRA order of 10 years.

[5] Let me explain the reasons for my decision.

2. Circumstances of the Offence

[6] I summarized the lengthy evidence in this trial and explained my reasons for a finding of guilt in reasons released in court on August 31, 2017. In brief, I found:

• In the spring of 2014, Kevin Chan was 31 years old and a math tutor at an educational organization called Spirit of Math. Around that time, he developed an inappropriate relationship with one of his students, I.N., who was 14. Mr. Chan's 21 year old fiancée, Kayla Drumonde, also entered into an extremely close relationship with I. Between June and August, the three of them saw each other or communicated with each other almost every day and exchanged kisses on the cheeks and forehead, hugs, and held hands frequently;

• Ms. Drumonde's relationship with I. began with them exchanging texts. Ms. Drumonde knew that I. was vulnerable, had suffered from depression, and had previously contemplated suicide. She also knew about I.'s asexual relationship with a female friend, and understood that I.'s mother did not approve of that relationship. I found that Ms. Drumonde was genuinely sympathetic to what I. was going through, as it was parallel to her own experience of being different from others;

• By July, Ms. Drumonde began seeing I. almost every day with Mr. Chan. They gave I. a key to their apartment, and I. went there frequently, without her parents' knowledge;

• On top of their daily visits with I., Ms. Drumonde and Mr. Chan were Face Timing at night with her when she was in bed, sometimes for up to an hour, and Ms. Drumonde would speak to I. on the telephone for hours;

• While in part, I found Ms. Drumonde was genuinely reaching out to I. and responding to this young girl's distress and turmoil at home, I also found that the relationship became intense and obsessive on Ms. Drumonde's part. Her letters to I. at camp in August frequently appeared romantic, intimate, passionate and longing, ("I'm so in love"; "when I kiss you I feel like a girlfriend");

• After the Children's Aid Society discovered the camp letters, the CAS told Mr. Chan and Ms. Drumonde to end the relationship with I. However, despite telling I.'s parents and the CAS that she wouldn't contact I. again, Ms. Drumonde began to have contact with her within about a week, eventually communicating regularly through encrypted communications, messaging through a third party or on line with secret codes;

• In the final analysis, I rejected the Crown's theory of sexual gratification or luring by Mr. Chan and Ms. Drumonde. I found that they genuinely cared for and loved I., and the relationship began with good intentions. All of the touching took place when everyone was fully clothed, and sometimes the hugging and touching was supportive and comforting. Kissing was only proven beyond a reasonable doubt to have taken place on I.'s cheeks and forehead. However, in the context of this intense, obsessive and inappropriate relationship, some of the touching and kissing had a sexual aspect to it that violated I.'s sexual integrity.

3. Circumstances of the Offender

[7] Ms. Drumonde is now 25 years old. She has no criminal record, and no issues with drugs or alcohol. She is hard working and supported herself through university, and has her Honours BA.

[8] Ms. Drumonde experienced a number of significant medical challenges at a young age, including kidney surgery at age 2, a non-cancerous brain tumour at age 5, and skin cancer at age 11. She also has chronic asthma, environmental allergies, and skin conditions from blood and autoimmune problems.

[9] After her parents separated when she was 10 years old, Ms. Drumonde began to attend psychotherapy at the Centre for Addiction and Mental Health for depression and anxiety. At 12, she was a voluntary inpatient at Youthdale for 3 months as a result of experiencing significant symptoms of depression, including threats of suicide and self-harming behaviour.

[10] She began communicating with strangers on the internet at a young age, and when she was 13, she was sexually assaulted by someone she met online. She met Mr. Chan online that same year when she was 13 and he was 22, and initially told him she was 16. She said that when she told him in person that she was only 13, they agreed to be friends until she was 16. When Ms. Drumonde was about 16, she and Mr. Chan began to live together. She says he provided emotional support for her and was a positive influence on her life in many ways. They lived together for 4 years but have now separated. She is involved in a new relationship.

[11] After being found guilty of this charge, Ms. Drumonde began counselling with Julie Freedman on November 20, 2017. Ms. Drumonde reports that she now has an understanding of her poor coping strategies and self-sabotaging behaviours. She says she has insight into her past inappropriate relationship patterns, her poor judgment and attention seeking behaviour, and is working on building a healthy level of self-esteem with healthy interpersonal boundaries.

[12] On January 18, 2018, Ms. Drumonde saw Dr. Julie Goldenson for a psychological assessment. Dr. Goldenson says that Ms. Drumonde seems to have a burgeoning insight into her past and her relational dynamics. With respect to this offence, Dr. Goldenson says Ms. Drumonde was able to pinpoint her errors of judgment, and balanced taking responsibility for the inappropriateness of her relationship with I., while also having insight as to why such a relationship seemed normal to her, given her upbringing and experiences. While she identified that there will always be parts of herself who would want to "rescue" others with whom she identifies, Dr. Goldenson believed that Ms. Drumonde now appears to understand that she needs to work on figuring out her own interpersonal dynamics and boundaries.

[13] Dr. Goldenson reports that Ms. Drumonde is currently having episodes of acute dysphoria, panic and poorly regulated mood before bed. She also told the doctor that she is cutting herself superficially about once a week with a razor, after having stopped for about 9 years previously. She reported sometimes banging her head on the wall to stop suicidal thoughts.

[14] Both Ms. Freedman and Dr. Goldenson found Ms. Drumonde to be at low risk to reoffend sexually or criminally. However, of note, Dr. Goldenson reported that Ms. Drumonde is highly depressed and highly anxious, with a score in the 99% percentile for suicidal thoughts. Currently, she is at moderate risk for self-destructive behaviour.

4. Law re: s.12 and Gross Disproportionality

[15] Section 12 of the Charter provides that, "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment".

[16] Mandatory minimum sentences by their very nature have the potential to depart from the principle of proportionality in sentencing, and function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range (see R. v. Nur, 2015 SCC 15 at para. 44). However, disproportionality alone is not sufficient to render a sentence one of cruel and unusual punishment, rather the sentence must be so excessive as to outrage standards of decency and be grossly disproportionate to what would have been appropriate.

[17] The process for this analysis was set out in Nur, and is not in dispute here. First the court must determine what constitutes a proportionate sentence for the offence and the offender before the court, having regard to the objectives and principles of sentencing in the Criminal Code. If the sentence is grossly disproportionate for the individual offender, the court then proceeds to analyse whether the infringement can be justified under s. 1 of the Charter. If the sentence is not grossly disproportionate in the case before the court, the "reasonable hypothetical" analysis should be considered, to determine if the mandatory minimum sentence would violate s.12 in relation to other, reasonably foreseeable cases. If so, a s.1 analysis is required.

[18] The mandatory minimum sentence of one year in jail for sexual interference when the Crown proceeds by indictment has been declared unconstitutional in many cases:

• R. v. T.(B.J.), 2016 ONSC 6616 (Desotti J.)
• R. v. M.L., 2016 ONSC 7082 (Linhares de Sousa J.)
• R. v. S.(J.D.), 2017 ONSC 1869 (Smith J.)
• R. v. Hussein, 2017 ONSC 4202 (Code J.)
• R. v. Ali, 2017 ONSC 4531 (Sheard J.)
• R. v. Scofield, 2018 BCSC 91 and 2018 BCSC 419 (Weatherill J.)
• R. v. E.J.B., 2017 ABQB 726 (Horner J.)
• R. v. Ford, 2017 ABQB 322 (Veit J.)
• R. v. P.(S.J.), 2016 NSPC 50 (Ross J.)
• R. v. Hood, 2016 NSPC 78 (Atwood J.)

[19] In R. v. E.M.Q., 2015 BSCS 201, Pearlman J. took a contrary position, and dismissed an application to declare the mandatory minimum one year sentence unconstitutional, sentencing the accused to a 13 month jail sentence, less pre-trial custody.

[20] Where the Crown has proceeded summarily on the charge of sexual interference and the mandatory minimum sentence is 90 days, one Ontario court has held the provision to be unconstitutional: R. v. J.G., 2017 ONCJ 881 (Thomas J.).

[21] In J.G., the accused was a 19 year old high school student who was involved in a romantic boyfriend-girlfriend relationship with a 14 year old student at the same high school. Towards the end of the school year, their relationship evolved to sexual intercourse, which was mutual, respectful, and devoid of any exploitive behaviour. However, when the girl's parents learned of the sexual nature of the relationship, they made a complaint to the OPP, who charged the boy. Because J.G. was 5 years and 35 days older than his girlfriend, she was unable to provide legal consent to their sexual relations. The victim did not want to see J.G. convicted, and did not want him to go to jail. She told the court she had no adverse effects from the relationship, including emotional or psychological. She and her parents both told the author of the PSR, that "the victim does not feel at all victimized in this matter!" Justice Thomas noted that J.G. had excellent antecedents, strong ties to his pro-social family and their values, was a volunteer in the community and planned to attend college. Police and probation also noted that he was polite, respectful and cooperative. Justice Thomas found that a 90 day sentence would be grossly disproportionate and amount to cruel and unusual punishment pursuant to s.12. The judge imposed a suspended sentence with probation.

[22] In R. v. C.F., 2016 ONCJ 302, my colleague Justice Felix found that the mandatory minimum was disproportionate, but not grossly so. Finding that the accused in that case, (who was 18, had no record and was clinically depressed), was the sort of offender who would fit the reasonable hypothetical, he found it unlikely that any other reasonable hypothetical could ground a s.12 breach, and upheld the constitutionality of the mandatory minimum sentence of 90 days. In R. v. Gumban, 2017 BCPC 226, Justice Werier came to a similar conclusion in British Columbia. (See below at s.6.4: the fact situations in C.F. and Gumban are summarized in relation to the range of appropriate sentence for Ms. Drumonde).

5. Law re: Sexual Interference Generally

[23] A sexual offence against a child is a very serious offence. The Ontario Court of Appeal has characterized the sexual abuse of a child as an act of both physical and psychological violence, and has repeatedly held that adults who offend against children should therefore expect significant penalties. Reference in the case law is made to adults who act as predators, who exploit children, or who satisfy their deviant needs with respect to children. In such cases, the law requires that denunciation and deterrence take precedence over other recognized objectives of sentencing: see R. v. Woodward, 2011 ONCA 610 at para.76; R. v. D.D., [2002] O.J. No. 1061 (C.A.) at paras.34-36.

[24] In D.D., Justice Moldaver eloquently explained this at para.34, which was echoed more recently by Justice Feldman in R. v. D.M., 2012 ONCA 520 at para.38:

1. Our children are our most valued and our most vulnerable assets.

2. We as a society owe it to our children to protect them from the harms caused by sexual predators.

3. Throughout their formative years, children are very susceptible to be taken advantage of by adult sexual offenders and they make easy prey for such predators.

4. Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences.

5. Three such consequences are now well recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.

6. Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.

[25] Sexual interference is a specific intent offence that involves touching the body of a child under the age of 16 for a sexual purpose. Generally, such an offence will be serious, even for brief and less intrusive acts of sexual touching, as a review of the cases outlined below in section 6.4 will illustrate.

[26] At the same time, as Justice Strathy observed in R. v. B.(M.), [2013] O.J. No. 3384 (C.A.) at para.21, in relation to the offence of sexual exploitation, "the case law indicates a broad range of sentences for this offence, largely because there are infinitely variable ways in which the offence can be committed and a wide range of offenders".

[27] As the cases referred to below in section 7.1 will demonstrate in relation to reasonable hypotheticals, this can include sexual interference by a single kiss; it can include an accused who suffers from mental health issues or who has a difficult aboriginal history; and, it can include a victim who does not feel victimized.

6. Applying the Law: The Appropriate Sentence for Ms. Drumonde Absent the Mandatory Minimum Sentence

6.1 Statutory Aggravating Factors

[28] The parties agree that it is a statutory aggravating factor that I. was a victim under the age of 18, pursuant to s.718.2(a)(ii.1).

[29] As indicated in my earlier ruling in relation to the Victim Impact Statements in this case, these events also had a significant impact on I. and her mother, which is an aggravating factor pursuant to s.718.2(a)(iii.1). In that regard, I. has had a hard time coping emotionally, and has been in and out of counselling and treatment as a result of the offence. She feels she did not experience high school as a typical teenager, and her grades and academic performance suffered. Her mother felt that her trust was betrayed particularly by Mr. Chan, and she has had sleepless nights, stress and anxiety as a result of the offence. She too has been to therapy.

[30] The Crown further submits that while Ms. Drumonde was not in a formal position of trust or authority to I., she was at least in a quasi-position of trust that amounted to an aggravating factor pursuant to s.718.2(a)(iii). The Defence submits the Crown has failed to prove this factor beyond a reasonable doubt.

[31] I agree that some aspects of the relationship suggested there were elements of trust and a position of authority in the relationship:

• I. was going through a time of turmoil with her parents and turned to Mr. Chan as a teacher for help, and this is how she met Ms. Drumonde;

• Ms. Drumonde became someone with whom she could confide and seek guidance about her relationship with her mother and her same-sex girlfriend;

• Ms. Drumonde herself said that sometimes she felt like I.'s mother or sister, and was fiercely protective of her as a result;

• on one weekend, the CAS placed I. in Ms. Drumonde's care, at the suggestion of I.'s mother.

[32] On the other hand:

• the primary relationship of trust and authority was between Mr. Chan as a teacher and I. as his student;

• Ms. Drumonde's relationship with I. developed outside of that framework;

• In part, Ms. Drumonde's relationship developed with I. out of a genuine attempt to reach out and support her mental health issues that were similar to ones that she had experienced, then it became a complicated kind of intense and almost obsessive love on Ms. Drumonde's part;

• I rejected the Crown's theory of luring and grooming;

• the age difference between Ms. Drumonde (21) and I. (14) was not all that great; and, in fact,

• Ms. Drumonde often appeared to be the one who needed I. as opposed to the other way around.

[33] Looking at these factors overall, I do not find that Ms. Drumonde's position in relation to I. can accurately be described as one of trust or authority, aside from the one weekend where I. was placed in her care by the CAS.

[34] Accordingly, while this statutory aggravating factor is present, it plays a relatively small part in the sentencing analysis here. Other aggravating factors that play a larger role will be addressed below.

6.2 Other Aggravating Factors

[35] Other aggravating factors include the following:

• I. was 14 at the time of the offence and Ms. Drumonde understood that she vulnerable and going through significant emotional turmoil and distress;

• Ms. Drumonde was 7 years older than I. and allowed an intense and inappropriate relationship to develop with her that included expressions of romance, intimacy, passion and longing;

• the acts of kissing I. on the cheeks and forehead, of hugging and holding her, had a sexual aspect to them that violated I.'s sexual integrity and occurred frequently;

• this continued between at least June to August 2014;

• Ms. Drumonde misled I.'s parents during this time and contributed to the already strained relations between I. and her parents;

• after she had been warned by the CAS and I.'s parents that the relationship was wrong, Ms. Drumonde told them that she would not see I. any more, however she continued to communicate with I. through coded messages and see her in secret to give her cigarettes.

6.3 Mitigating Factors

[36] There are a number of mitigating factors that need to be taken into account in sentencing:

• while much of the kissing, hugging and holding had a sexual aspect to it, it was part of a complicated relationship that began with good intentions;

• the kissing, hugging and touching all took place while the parties were fully clothed, and were not proven to involve kissing anywhere other than the cheek and forehead;

• Ms. Drumonde genuinely cared for and loved I.;

• she herself was only 21 at the time of the offence, and had experienced significant personal issues including a difficult home life, depression and anxiety, self-harm and sexual assault;

• she has no criminal record;

• she is intelligent, educated and hard-working, with strong support from her family and friends;

• she has begun weekly counselling with Ms. Freedman and has been "meaningfully engaged in a process of self examination";

• Dr. Goldenson indicates that Ms. Drumonde "seems to have a burgeoning insight into her past and her relational dynamics" and appears to understand that she needs to "work on figuring out her own interpersonal dynamics and boundaries". She appears to have insight that even a precocious and smart adolescent "lacks the true maturity with which to navigate complex intimate relationship with older adults";

• clinical assessment indicates that she does not appear to have any pedophilic or hebephilic sexual interests, and is at low risk to reoffend sexually or criminally.

[37] Other circumstances that need to be considered include the fact that these proceedings have already had a substantial impact on Ms. Drumonde by virtue of the wide spread media coverage about her arrest on charges of "gang sexual assault". Currently, she is emotionally fragile: Dr. Goldenson states that Ms. Drumonde is highly depressed and anxious, and having suicidal thoughts. Dr. Goldenson's clinical assessment is that Ms. Drumonde is at moderate risk for self-destructive behaviour. She would benefit from long term therapy.

6.4 Appropriate Sentence Absent the Minimum

[38] On behalf of Ms. Drumonde, Ms. Ross submits that a conditional discharge is the appropriate sentence. She acknowledges that a conditional discharge for a sexual offence involving a child is unusual and limited to exceptional circumstances, however, she cites examples of discharges in the cases of R. v. Burton, 2012 ONSC 5920; R. v. Troutlake, 2002 CarswellOnt 3263 (CJ); R. v. B.(J.L.), 2017 BCPC 24; R. v. H.(T.J.), 2012 BCPC 115 and R. c. Rell, 2017 QCCQ 13035.

[39] In my view, those cases are all distinguishable because none of them involved a finding of sexual assault against a child. Moreover, they each involved a single incident or one-time occurrence of sexual touching.

[40] In R. v. W.(C.S.), 1992 CarswellOnt 3681 (O.C.J.), the accused briefly fondled the breasts of his 12 year old daughter on two occasions. He stopped the incidents of his own accord and pleaded guilty to spare his daughter the trauma of testifying against him. He demonstrated great remorse, and became some­what of a recluse. Under the care of a psychiatrist he acknowledged thoughts of suicide and one attempt at suicide. The family, including the victim, wished to have the accused reintegrate into the family. There was no mandatory minimum sentence at the time, and Justice Vaillancourt imposed a suspended sentence and 2 years of probation.

[41] Like the other cases cited by the Defence, W.(C.S.) is distinguished by the brief nature of the interactions on two occasions. The offences stopped on their own accord, and the accused demonstrated great remorse for his actions.

[42] In this case, one of the aggravating features of the offence is the frequent occurrence of the kissing, hugging or holding of I. over the entire summer. The intense, passionate and almost obsessive quality of Ms. Drumonde's feelings for her also distinguishes this case from a casual or brief encounter in the cases cited above.

[43] The fact that I. was a child who was already in crisis is an important factor elevating the seriousness of the offence. Finally, the context of the relationship that involved misleading I.'s parents and the CAS about the end of the relationship makes this case a particularly troubling one.

[44] Taking into account the need to denounce and deter the abuse of a child, and considering the aggravating factors in this case, I agree with the Crown that a jail sentence is appropriate.

[45] The cases cited by the Crown involving minimally intrusive sexual assaults on a teenager support this position.

[46] R. v. G(.L.), 2001 CarswellOnt 715 (S.C.J.): the accused was 41 years old and in a relationship with the victim's mother. He was in a position of trust towards the victim, who was 13 at the time. He entered a guilty plea to one count of sexual interference. The sexual acts included hugging and French kissing the victim. He also touched her chest and licked her body. There was no mandatory minimum sentence at the time, and the Crown sought a sentence of 6 months in jail while the Defence submitted a non-custodial sentence was appropriate. The accused had had a difficult life, having been born in the former Czechoslovakia and fled that country. In addition his father had been in a car accident and sustained brain damage but lived in hospital for 15 years before passing away. Justice Glass imposed a sentence of 3 ½ months in jail, with 2 years of probation.

[47] R. v. Macedo, 2012 ONSC 2595, [2012] O.J. No. 2776 (S.C.J.): the accused was the victim's math teacher who had the 16 year old victim remain in class until all the other students had left one day. The facts involved the accused pinching the victim's cheek, placing his arm around her back and resting his hand on her stomach, sliding his hand down to her buttock. After she rushed to finish her work, he hugged and kissed her on the side of her forehead and near her lips. When he asked if he could kiss her she said no, and he asked why she didn't love him. As she left, he motioned her back and said "it's our secret". He was found guilty after trial and sentenced to 90 days jail, with 2 years of probation. Justice Hill dismissed his conviction appeal and the sentence was not appealed. The mandatory minimum sentence at the time was 14 days jail.

[48] R. v. C.L., 2013 ONSC 277, [2013] O.J. No. 114 (S.C.J.): the accused was a 50 year old neighbour of the victim, who was 15. The facts involved two incidents. In the first, while their families were returning from an evening together at a restaurant in a minivan, the accused touched the victim's upper thigh and tried to put his hands between her legs. The incident was disclosed to her grandmother, who assumed it was inadvertent or accidental as the accused was drunk that night. On the second incident, the victim went to the accused's home and he led her to the basement and tried to touch her breasts and legs, as well as kiss her. The victim escaped and told her grandmother, who called police. The accused was found guilty after a 3 day trial and sentenced to 6 months in jail. On appeal, Justice Campbell upheld the conviction, but reduced the sentence to one of 90 days. The accused had no prior record, was fully employed, and this was out of character. The aggravating factors included that there were two incidents which had a serious impact on the victim. They were also "something of a breach of trust", since the victim called the accused "uncle" and there was a wide age difference between them. The mandatory minimum sentence at the time was 14 days jail, and Justice Campbell noted the sentence "may well fall at the lower end of the appropriate range of sentence for the non-consensual touching of a minor".

[49] R. v. C.F., 2016 ONCJ 302, [2016] O.J. No. 2752 (O.C.J.): the accused was just a few weeks past his 18th birthday and in a relationship with the victim's older sister. The accused initiated contact with the victim early in the morning and was touching her while mimicking sexual positions. He also caused her to touch his penis. There was no formal mental health diagnosis for the accused, although he was taken to hospital after having an emotional response to the allegations during his police interview. He was later diagnosed with clinical depression when he was incarcerated as a result of a surety revocation of bail. The accused was found guilty after trial, and challenged the mandatory minimum sentence of 90 days. Justice Felix found that, absent the mandatory minimum, the appropriate sentence would have been 60 days but held that the minimum was not grossly disproportionate. The accused was sentenced to the minimum.

[50] R. v. M. L., [2016] O.J. No. 5846 (S.C.J.): the accused was a 56 year old adult caregiver who was in a position of trust to the 15 year old victim. While in bed watching a movie together, the accused gave her a massage, supposedly to relax her, which he had done before without incident. They both became topless, and smoked some marijuana. The accused then touched the victim for a sexual purpose by touching and squeezing her breasts. When she told him to stop he did, and they continued to sleep together in the bed for the night without further incident. The Crown proceeded by indictment and the accused was found guilty by a jury. Justice Linhares de Sousa found that the one year mandatory minimum sentence was not grossly disproportionate for this offender, but found it to be grossly disproportionate in relation to a reasonable hypothetical offender. The judge found the mandatory minimum was not saved by s.1, and declared s.151 of no force and effect. The accused had no prior record and had been steadily employed, but the effect of the offence upon the victim was real, palpable and ongoing. In the absence of the mandatory minimum, the appropriate sentence was found to be 9 months in jail.

[51] R. v. Gumban, 2017 BCPC 226, 2017 B.C.J. 1530: the accused was a 42 year old custodian for the Vancouver School Board who was working in the school when he approached the 14 year old victim and some other students, engaging them in conversation and showing them pictures of his family. He gave the victim his phone number and told him to call him, and told him he liked him. Later that day he showed him a picture of a naked male with an erect penis and told him he had a lot more like it, then persisted again and called the victim over and asked if he would like to touch his penis and eat it. The victim said no, and the accused said not to tell his friends or family. When the victim returned to his friends, he began to cry and told them, and then his parents, about what happened. The Crown proceeded summarily, and sought the minimum sentence of 90 days. The accused pleaded guilty to the offence of invitation to sexual touching. He challenged the mandatory minimum, seeking a suspended sentence with probation. He had no record, had a university education in the Philippines and was married with a young family. He was conflicted about his sexual orientation which included men, but not young children, and he had begun counselling. He was at low risk to reoffend. The judge held that while the accused was a sympathetic offender for whom jail would be difficult, an intermittent sentence would lessen the impact upon him. While absent the mandatory minimum, Justice Werier might have imposed a sentence of marginally lower than 90 days, a jail sentence was still appropriate, and 90 days was not grossly disproportionate. The judge found the hypotheticals involving an aboriginal offender or a "close in age" offender were of the "far fetched variety", and not grounded in common sense. Since those hypotheticals did not diminish the gravity of this kind of offence, the judge found that a 90 day sentence would not be grossly disproportionate.

[52] In my view, absent the mandatory minimum, a short sentence of imprisonment is appropriate for Ms. Drumonde. Such a sentence would take into account the aggravating factors that I have listed, and would be in the range of sentences for less intrusive sexual offences on a teenager that I have noted above. At the same time, it would properly take into account the minimally intrusive nature of the kissing and hugging, Ms. Drumonde's own young age at the time of the offence, the complicated nature of her relationship with I. that included genuine love and affection, as well as her own troubled and difficult background that prompted her to get involved with this young girl in the first place.

[53] In light of Ms. Drumonde's emotionally fragile state and suicidal thoughts, further imprisonment in a real jail cell would present a very real hardship to her and pose an actual danger of self-harm. Accordingly, I have considered whether service of a jail sentence in the community would be appropriate.

[54] I am satisfied that a jail sentence in the community would be consistent with the fundamental purpose and principles of sentencing set out in the Criminal Code. Upon arrest, Ms. Drumonde spent 3 days in an actual jail cell. There has been a significant degree of general deterrence effected simply by virtue of the wide spread pre-trial publicity about the charges, ending in a very public conviction for sexual interference against Ms. Drumonde. Denunciation and general deterrence will be further augmented by an order on sentencing that Ms. Drumonde register as a sexual offender under the Sexual Offender Registration provisions of the Criminal Code for the next 10 years.

[55] I am satisfied that in light of Ms. Drumonde's otherwise good character and considering the reports of Ms. Freedman and Dr. Goldenson, service of her jail sentence in the community would not endanger the community. Absent the mandatory minimum sentence, I would impose a conditional sentence of 45 days on top of pre-trial custody already served, followed by 3 years of probation, as well as orders for DNA and Sex Offender Registration.

6.5 Is 90 Days Grossly Disproportionate to the Appropriate Sentence for Ms. Drumonde?

[56] Given that I would impose a jail sentence of 30-45 days on Ms. Drumonde, I do not believe it can be said that a 90 day sentence amounts to a grossly disproportionate sentence that would outrage standards of decency. I do not find that the mandatory minimum sentence is unconstitutional based on the facts of the particular case before me.

7. The Reasonable Hypothetical

[57] Based on judicial experience and common sense, it appears to me that a reasonable hypothetical for sexual interference that would result in a grossly disproportionate sentence of 90 days in jail could arise out of the combination of any of the following three factors: the facts of the offence; the circumstances of the particular offender; and the wishes of the particular victim.

7.1 The Facts of the Offence

[58] As noted above, there are "infinitely variable ways" in which the offence of sexual interference can be committed. A single non-consensual kiss or attempted kiss by an adult in relation to a 15 year old is a sexual interference. While the Crown doubts that such a scenario is reasonable, I have dealt with the single unwanted kiss in a number of cases, albeit involving adults.

[59] In one such case, Mr. A-A was charged with a single count of sexual assault arising out of an encounter that he had with DG on October 23, 2005. The two of them worked at the same grocery store, although they didn't know each other well. In fact they had had a brief conversation at work only once before, on the night before this allegation. During the evening of October 23, DG was passing by the Subway Store where Mr. A-A also worked, and after she entered the store, he gave her an unwanted kiss on the cheek, then grabbed her and held her close, and finally attempted to kiss her on the lips.

[60] I found that Mr. A-A got carried away in the situation. He was flattered that DG gave him what he thought was her real phone number, and was encouraged when she passed by the Subway Store and agreed to come in. However, ignoring her protestations about wanting to leave, and paying no attention to her clear rejection of his unwanted advances, he committed a sexual assault when he tried to kiss and hug her. I sentenced him to a suspended sentence and probation.

[61] While the parties in that case were young adults, it is not far-fetched that such a situation could arise between an 18 year old accused and a 15 year old victim.

[62] A three month jail sentence for a young first offender's single lapse of judgment would be an unheard of punishment for a low level, minimally intrusive sexual assault such as an unwanted kiss on a 15 year old. It would clearly outrage standards of decency and be grossly disproportionate.

7.2 The Circumstances of the Particular Offender

[63] s.718.01 of the Criminal Code, and the case law cited above in section 5, make it clear that when a court imposes a sentence for an offence that involved the abuse of a person under 18, the court shall give primary consideration to the objectives of denunciation and deterrence.

[64] However, as the majority observed in Nur at para.45, "General deterrence – using sentencing to send a message to discourage others from offending – is relevant. But it cannot, without more, sanitize a sentence against gross disproportionality … put simply, a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending".

[65] Two factors that may reasonably contribute to a grossly disproportionate sentence for a particular offender are aboriginal status and mental health factors.

[66] In R. v. Ford, (cited above), Veit J. noted that it was "highly foreseeable that offenders with diminished responsibility, such as a young adult aboriginal offender suffering from severe cognitive or emotional dysfunction" would be caught by a mandatory minimum sentence that would be grossly disproportionate.

[67] Similarly, in R. v. Hood, (cited above), Atwood J. found that while criminally responsible, Ms. Hood was experiencing a mental disorder at the time of the offence that was an underlying cause for her behaviour. In the circumstances of that case, the judge found that the mandatory minimum would be grossly disproportionate.

[68] Recently, in R. v. Scofield, (cited above), Weatherill J. found that the 22 year old accused had significant cognitive impairment and dysfunction, with a suggestion that he may have Fetal Alcohol Spectrum Disorder. Assessment indicated that he met all three DSM-IV-TR criteria for a diagnosis of mental retardation, and the judge found that that his deficits were a causal factor to him committing the offences. In that case, the offender had a short relationship with each of the 15-year old victims, including having unprotected sexual intercourse. In a carefully worded judgment designed so that the accused could understand and appreciate the decision, (in addition to the usual, wider audience), Justice Weatherill concluded that the case called for a highly individualized sentence that could not be accomplished with the mandatory minimum term of imprisonment which was grossly disproportionate to the appropriate sentence for Mr. Scofield. The judge stated at paras.119 and 129:

One of the problems with the mandatory minimum sentence in this case is that it "casts its net over a wide range of potential conduct": Nur, at para.82; Lloyd, at para.27. As a result, it catches not only sexual predators and those who have a propensity to prey on underage minors that is its proper aim, but also conduct that is much less blameworthy. The mandatory minimum sentence here does a very poor job of addressing mental health and offenders with significant cognitive difficulties. The language of s.151(a) is broad enough to capture crimes that run the gamut from touching the victim for a split-second to repeated acts of sexual intercourse with a person under the age of 16: E.M.Q., at para.80.

… a reasonably informed member of the public, aware of all the circumstances of this case, would agree that sending Mr. Scofield to prison for one year would be "so excessive as to outrage standards of decency". Even more so as the public is becoming more informed about the impact that mental health issues and cognitive challenges can play in the criminal justice system.

7.3 Victim Input

[69] On its own, this factor might not render a 90 day minimum sentence grossly disproportionate. However, circumstances such as the victim's wishes to have her family reunify may make the case exceptional. In R. v. W.(C.S.), (cited above) Justice Vaillancourt took into account that the victim and her family wished to have the accused reintegrate into the family.

[70] In R. v. J.G., (cited above), Justice Thomas took into account that the 14 year old victim said she had no adverse effects from the relationship with her 19 year old boyfriend, including emotional or psychological. She and her parents both told the author of the PSR, that "the victim does not feel at all victimized in this matter!".

7.4 Reasonable Hypothetical

[71] In R. v. C.F., and in R. v. Gumban, the judges dismissed the Charter applications based on alleged gross disproportionality, finding it unlikely that any other reasonable hypothetical could ground a s.12 breach beyond the cases before them. In Gumban, the judge held that the proposed hypotheticals appeared to be of a more "far-fetched" variety, seeking to create the most innocent or sympathetic case rather than one grounded in common sense or realistic experience.

[72] I respectfully disagree with that analysis.

[73] The offence of sexual interference can be committed at the very low end of the range of conduct against a child, including an unwanted kiss by an 18 year old on a 15 year old. While most cases of sexual interference by someone 18 or older on a child will be extremely serious with a high degree of moral blameworthiness, that is not always the case.

[74] Further, as Ford, Hood and Scofield demonstrate, it is not far-fetched to hypothesize an offender who is aboriginal, has emotional disorders or mental health issues who commits such an offence. Indeed, sentencing courts deal with such offenders on a daily basis.

[75] Judicial experience teaches that the unique circumstances of real people can be caught up in the broad net of the mandatory minimum sentence regime in unexpected ways. J.G. is an excellent example of that:

• the facts of the offence were unique but real, with a 19 year old accused and a 14 year old victim who had a mutual sexual relationship, and, "but for a mere 35 days, JG would have had a complete defence at law to these charges";

• the accused had excellent antecedents, strong ties to his pro-social family and their values, was a volunteer in the community and planned to attend college. Police and probation officials all noted that he was polite, respectful and cooperative; and,

• the victim did not want to see J.G. convicted, and did not want him to go to jail. She told the court she had no adverse effects from the relationship, including emotional or psychological. She and her parents told the author of the PSR, that "the victim does not feel at all victimized in this matter!".

[76] I agree completely with Justice Thomas' conclusion that to impose a 90 day sentence in that case would have been not only excessive and disproportionate, but grossly disproportionate and in violation of s.12 of the Charter.

[77] The facts of J.G. demonstrate that real people – both offenders and victims – can be swept up in the broad net of mandatory minimum sentences in ways that are grossly disproportionate to the appropriate sentence. J.G. is a compelling example of a reasonable hypothetical that violates s.12.

[78] The Crown spent some time in its factum explaining that the expansion of mandatory minimum sentences was the subject of extensive and deliberate consideration by Parliament, and that support crossed party lines in relation to sexual offences against children. However, as Justice McLachlin stated in R. v. Lloyd, 2016 SCC 13, 2016 S.C.C. 13, at para.35:

… in light of Nur, the reality is this: mandatory minimum sentences that, as here, apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge. This is because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional. If Parliament hopes to sustain mandatory minimum penalties for offences that case a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences.

8. Can the s.12 Violation in s.151(b) be Saved Under s.1 of the Charter?

[79] Once a violation of s.12 is found, the Crown has the onus of establishing a s.1 justification. The test, as set out by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103, asks:

1. Does the legislation address a pressing and substantial objective that justifies the limitation of the Charter right?

2. Is the means chosen to achieve the objective proportional, in that:

   a. the measures chosen to limit the right must be rationally connected to the objective of the law;

   b. they must impair the guaranteed right as minimally as reasonably possible to achieve the objective; and

   c. there must be overall proportionality between the deleterious effects of the measures and the salutary effects of the law.

[80] The protection of children from sexual contact with adults is a pressing and substantive objective. The Crown can pass the first hurdle of the test.

[81] In Nur at para.115, the majority found that the connection between the imposition of a mandatory minimum sentence for a crime, and achieving deterrence of that crime, was not demonstrated. However, despite the frailty of any connection to deterrence, a rationale connection was found between the minimum sentence and the goals of denunciation and retribution. The Crown passes the second hurdle.

[82] However, the Crown cannot show that a mandatory minimum sentence of 90 days for all offences of sexual interference impairs the right to be free from a cruel and unusual punishment as minimally as reasonably possible. As Justice McLachlin pointed out in Lloyd (cited above), at paras.35-36, Parliament could build a safety valve into the legislation that would allow judges to exempt offenders for whom the minimum will constitute a grossly disproportionate sentence, such as a residual judicial discretion for exceptional cases.

[83] Moreover, the Crown cannot show that a grossly disproportionate sentence of 90 days is "proportionate" between the deleterious and salutary effects of the law. As Justice Doherty put it in the Court of Appeal below in Nur, 2013 ONCA 677 at paras.179-180, upheld in the result at the Supreme Court:

… the basic quid pro quo underlying s.1 does not exist where the state imposes punishment that is "so excessive as to outrage standards of decency" and so disproportionate as to be "abhorrent or intolerable" to Canadians: Ferguson, at para.14. What possible social benefit could render such punishment "demonstrably justified in a free and democratic society?"

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 justice system.

[84] The Crown cannot pass the last two hurdles in s.1. I do not find it has shown that the mandatory minimum sentence in s.151(b) constitutes a reasonable limit, demonstrably justified, in a free and democratic society.

[85] I find s.151(b) unconstitutional, and not justified by s.1 of the Charter.

9. Summary

[86] In the absence of the mandatory minimum sentence, I sentence Ms. Drumonde to:

• 3 days of pre-trial custody noted at 1.5:1 = 5 days of a sentence already served;

• a conditional sentence of 45 days in jail, to be served in the community on terms of house arrest;

• 3 years of probation with the following conditions:

  • report
  • reside
  • no weapons
  • no contact with I. N. or any member of her family
  • not to be within 150 m. of anywhere she knows I. N. to live, work, go to school or happen to be
  • attend and participate in assessment and/or counselling as directed by and to the satisfaction of probation for sex offender treatment/sexual boundaries
  • sign releases to allow probation to monitor compliance;
  • not to be in the direct presence of a child under the age of 16 years of age unless in the direct presence of another adult over the age of 21 years, other than Kevin Chan

• provide a sample of her DNA pursuant to s.487.051 (primary designated offence)

• an order for Sex Offender Registration for 10 years pursuant to s.490.013(2)(a)

• victim surcharge $100, 30 days to pay.

[87] I want to thank Ms. Ross on behalf of Ms. Drumonde, and Mr. Nathanson and Ms. McLoughlin on behalf of the Crown for their excellent materials and very helpful submissions.

Released: to the parties on April 5, 2018; in court on April 25, 2018.

Signed: Justice Leslie Pringle