*AN ORDER WAS MADE PURSUANT TO S. 486.4 BANNING PUBLICATION OF THE NAMES OF THE COMPLAINANT, HER MOTHER AND GRANDMOTHER

COURT FILE NO.: CR-11-00000179-00AP

DATE: 20130719

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

T. M. B.

– and –

ABORIGINAL LEGAL SERVICES OF TORONTO

Shannon Chace, Sara Weinrib and David Mitchell, for the Crown/Respondent

Stephen Ford, for the Appellant

Jonathan Rudin and Emily Hill, for the Intervenor Aboriginal Legal Services of Toronto

HEARD: January 15 and 16, 2013

M.A. Code J.

REASONS FOR JUDGMENT

A. OVERVIEW

[1] The Appellant T.M.B. (hereinafter B.) was charged on September 26, 2007 with touching a child under the age of fourteen for a sexual purpose, contrary to s. 151 of the Criminal Code. He was also charged with sexual assault, contrary to s. 271, in a second count relating to the same incident. The offence was alleged to have taken place twelve days earlier, on September 14, 2007. The complainant was B.’s five year old granddaughter

[2] The s. 151 offence is commonly known as sexual interference. It is a hybrid offence, like sexual assault, and the Crown proceeded summarily on both counts. The trial commenced before Sparrow J. in the Ontario Court of Justice on December 1, 2008. After protracted trial proceedings, which included testimony from the now six year old complainant, Sparrow J. convicted B. of the sexual interference offence on January 26, 2010. A finding of guilt on the sexual assault count was stayed pursuant to the Kienapple principle.

[3] At the time of these proceedings, the offence of sexual interference carried a maximum sentence of eighteen months imprisonment and a mandatory minimum sentence of fourteen days imprisonment, when the Crown proceeded summarily. The maximum sentence was ten years imprisonment and the mandatory minimum sentence was forty-five days imprisonment when the Crown proceeded by indictment. Subsequent amendments to the Criminal Code, which came into force on August 9, 2012, have raised the mandatory minimum sentences for sexual interference to ninety days imprisonment (when proceeding summarily) and to one year imprisonment (on indictment) and have imposed the same minimum sentences for sexual assault in cases where the complainant is under age sixteen. See: S.C. 2012, c. 1, s. 11 and s. 25. Subsequent amendments to s. 151 have also raised the requisite age of the complainant from fourteen years to sixteen years. See: S.C. 2008, c. 6. When the offence of sexual interference was first enacted in 1985, it did not include any mandatory minimum sentences. See: R.S. 1985, c. 19 (3d Supp.), s. 1. After twenty years experience with the new offence, mandatory minimum sentences of fourteen days (on summary conviction) and forty-five days (on indictment) were legislated by Parliament in 2005. See: S.C. 2005, c. 32, s. 3. It is these 2005 amendments that are the subject of the constitutional attack that was to be brought in the present case at the time of sentencing, as explained below.

[4] Upon his conviction, B. launched a constitutional challenge to the fourteen day mandatory minimum sentence. The Notice of Application and Constitutional Question was served and filed on March 18, 2010. It did not allege a violation of the s. 12 Charter of Rights and Freedoms protection against cruel and unusual treatment or punishment, which has been the more common argument in constitutional challenges to mandatory minimum sentences. Rather, it alleged violations of s. 7 fundamental justice and s. 15 equality rights, based on B.’s Aboriginal heritage. He is a member of the Mohawks of the Bay of Quinte (Tyendinaga) First Nation.

[5] A considerable body of evidence was called on the lengthy constitutional hearing, including from a number of expert witnesses. On October 7, 2011, Sparrow J. released reasons for judgment finding no violation of either s. 7 of s. 15 of the Charter. See: R. v. T.M.B., [2011] O.J. No. 4836 (O.C.J.). A sentencing hearing was then held on November 14, 2011. After briefly reserving judgment, Sparrow J. sentenced B. to eight months imprisonment and three years probation on November 28, 2011. In other words, the actual sentence imposed in this case was substantially longer than the fourteen day mandatory minimum sentence that had been legislated by Parliament in 2005.

[6] By Notice of Appeal dated November 30, 2011, B. appealed to this Court against sentence only. There is no conviction appeal. The main aspect of the sentence appeal is the constitutional argument, as to whether the fourteen day mandatory minimum sentence violates s. 15 and/or s. 7 of the Charter by removing the possibility of a non-custodial sentence. The primary issue here is whether mandatory minimum sentences violate s. 15, in the case of Aboriginal offenders, because these provisions cause adverse effects on a historically disadvantaged group.

[7] In the alternative, if Sparrow J.’s decision on the constitutional issue is upheld, B. submits that the eight month jail sentence is excessive. B. is now almost sixty years old, he is employed, he is a first offender, he is in a stable long term relationship with his wife, he will have been on bail for almost six years by the time this appeal is concluded, and the fresh evidence on appeal may suggest the beginnings of feelings of shame and remorse. In all these circumstances, B. submits that a ninety day custodial sentence, served intermittently and followed by probation, would be the appropriate sentence.

[8] The appeal was heard on January 15 and 16, 2013 and I reserved judgment. Later that same week, on January 18, 2013, the Supreme Court of Canada released its judgment in a major s. 15 Charter case, styled Quebec v. A, 2013 SCC 5. The parties requested leave to file supplementary submissions in writing, addressing the impact of this new decision on their s. 15 Charter arguments. These further written submissions were received on February 28, March 11, and March 15, 2013.

[9] These are my reasons for judgment on B.’s appeal against sentence, including his constitutional challenge to the mandatory minimum sentence for sexual interference found in s. 151(b) of the Criminal Code.

B. FACTS RELATING TO THE OFFENCE AND THE OFFENDER

[10] Given that there is no appeal against conviction, I will only set out those facts that are relevant to sentencing. Indeed, the trial transcripts were not filed for purposes of the present sentence appeal. The facts relating to the offence are found only in a four paragraph agreed statement of fact, filed on the sentence appeal, and in the trial judge’s reasons for conviction and reasons for sentence.

[11] In brief summary, B. was looking after his five year old granddaughter on the night in question while her parents attended to other obligations. B. picked up his granddaughter after school and took her to his Toronto apartment where she stayed with him for a sleep-over. B. was alone with his granddaughter that evening as his wife was at work.

[12] At some point during the evening, B. and his granddaughter both removed their pajamas and underwear and lay down on the living room carpet. B. then touched his penis to his granddaughter’s vagina for a period that she estimated as about two minutes. She referred to this activity as “doing our pee pees together”. There was no penetration, no repetition, and no threats.

[13] A few days later, the granddaughter reported the incident to her mother when they had some time alone. A change in behaviour was also noticed, as the granddaughter exhibited temper tantrums and also experienced nightmares. The Victim Impact Statement, prepared by the complainant’s mother and as summarized by the trial judge, noted a number of negative behavioural changes including “fear of a male teacher, refusal to bathe, and refusing to wipe herself properly after using the toilet”. The victim’s mother and father (B.’s son) separated after the charges were laid. The trial judge summarized the mother’s evidence at the sentencing hearing as follows:

… her daughter, now nine, continues to have the toileting problems to some degree, and exhibits moodiness that is contrary to her early childhood personality. She had trouble sleeping through the night for years after the incident. However, she successfully managed to move to Kingston with her mother about two years ago, and is an A student. She was seen by professionals … about five months after the incident, and was found to be, in essence, normal.

[14] The accused B. was fifty-three years old at the time of the offence and was fifty-seven years old at the time of sentencing. He is now fifty-nine years old. He has no prior criminal record. He lives with his second wife in an apartment in Toronto. They have been together in a long term relationship since 1992 and have been married since 1999. She stated that in their twenty years together, “he has always worked full-time and has been a reliable contributor to the household … Terry has never once raised his voice in anger towards me. He is a kind, gentle, and responsible person …” His two older sisters made similar observations. B. is presently employed with an auto parts company in Toronto. He started working at age thirteen and has an excellent employment record. He also completed high school and raised three children, including the complainant’s father.

[15] A long and thorough Gladue report was filed on the sentencing hearing. The author of the report, Leslie King of Aboriginal Legal Services of Toronto, interviewed B. and two of his sisters. B. is a member of the Mohawks of the Bay of Quinte and was born and raised on their territory, located between Belleville and Kingston. There were seven children in the family. They were poor and B. had a difficult childhood.

[16] B.’s father was an alcoholic and he rarely worked. The family of nine lived in a two bedroom house, without electricity or running water, and they often went without food or winter clothing. B.’s father was physically abusive to his wife and children. He often hit B. for no reason, with a closed fist, perhaps because B. was the oldest boy. Other family members were too afraid of the father to intervene. It appears that B.’s father had, himself, been physically abused and was repeating learned behaviour that “probably goes back generations”, according to the author of the Gladue report. There was also racism and physical abuse of B. at school where “the white teachers didn’t like Indian kids” and where there were fights “with white kids because of name calling” and insults. Finally, the Gladue report stated that B. was sexually abused as a ten year old child by an adult neighbour. He has not received any counseling for this historical sexual abuse. B. has no history of alcohol or drug abuse, having been “turned off” by what he saw of his father.

[17] The author of the Gladue report recommended that B. attend the outpatient program at the C.A.M.H. Sexual Behaviours Clinic and that he work with the Gladue Aftercare Worker at Aboriginal Legal Services of Toronto. In his fresh evidence affidavit, filed on the appeal, B. stated:

I accept that [I] had a full and complete trial. I further accept that, notwithstanding my claim of innocence, the Crown proved its case against me. Although my initial feelings were ones of anger and disappointment, I now harbour feelings of shame as a result of my conviction. I am prepared to work with the Aboriginal community and will engage in any and all counselling or programs that are recommended.

C. EVIDENCE CALLED AT THE CONSTITUTIONAL HEARING

[18] The parties called five expert witnesses who testified for six days at the constitutional hearing. In addition, a large amount of documentary and social science material was filed in writing in the form of articles, reports, and studies.

[19] Sparrow J. summarized this extensive body of evidence and I cannot improve on the summaries set out in her reasons. The evidence can be divided into three broad topics: the over-representation of Aboriginals in the Canadian criminal justice system; the prevalence of and the harms associated with child sexual abuse; and the efficacy of incarceration, as a response to child sexual abuse, including the use of mandatory minimum sentences.

[20] The first topic – the over-representation of Aboriginals in the Canadian criminal justice system – has become a matter of judicial notice and binding precedent, as a result of the decisions in R. v. Gladue (1999), 1999 679 (SCC), 133 C.C.C. (3d) 385 (S.C.C.) and R. v. Ipeelee (2012), 2012 SCC 13, 280 C.C.C. (3d) 265 (S.C.C.). Sparrow J. summarized this body of evidence as follows:

It is undisputed that Aboriginals are disproportionately jailed in Canada. According to Juristat, a publication of Statistics Canada, addressing statistics compiled in the justice system, Aboriginals represented 3.1% of all adults 18 years of age or older in Canada in 2008; yet they accounted for 20% of adults in pre-trial custody, 25% of adults in provincial/territorial custody, and 21% of conditionally sentenced adults. In 2000, Juristat reported that 17% of adults in all levels of Canadian prisons were Aboriginal. The percentages were smaller five years earlier. In summary, it is clear that representation of Aboriginals in prisons has increased.

In the landmark case of R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, the Supreme Court of Canada relied heavily on the findings of the Royal Commission on Aboriginal People’s 1996 Report on Criminal Justice [RCAP], called Bridging the Cultural Divide, and particularly its conclusion that the criminal justice system has failed the aboriginal people.

At paragraph 64 the Court stated:

“The drastic overrepresentation of Aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt to redress this social problem to some degree. The provision may properly be seen as Parliament’s direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process”.

The Royal Commission also described Aboriginal over-representation as “injustice personified”. It identified three possible explanations for over-representation: cultural difference; socio-economic deprivation; and the impact of relations between Aboriginal and non-Aboriginal society. At paragraph 46, the Commission concluded that the impact of the latter factor best provided an understanding of over-representation:

“We have concluded that over-representation is linked to particular distinctive historical and political processes that made Aboriginal people poor beyond poverty. Aboriginal people experience these risk factors with greater frequency and intensity than do Canadians generally. The reasons are rooted in the relations between Aboriginal people and the rest of Canadian society – relations that were shaped in the colonial era and have never been thoroughly reshaped since …”

The Supreme Court of Canada agreed with the analysis provided by RCAP and the other inquiries that over-representation is best explained by the historical treatment of Aboriginals. The Court found at paragraph 67:

“Years of dislocation and economic development have translated, for many Aboriginal peoples, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation. These and other factors contribute to a higher incidence of crime and incarceration.”

Although the Supreme Court in Gladue did not use the term “colonialism”, the Intervener, Aboriginal Legal Services of Toronto, submits that the decision in its entirety blames colonialism or colonisation for the problems of over-representation. These terms were used by all witnesses called by the Applicant and the Intervener.

Professor Roach testified as follows on the subject: “colonialism also can help explain high rates of victimization, so in my mind, the colonialism theory because it is rooted in history, and is more holistic than a social science approach which attempts to isolate particular variables, is a more powerful explanation for why one in four people in our provincial jails are Aboriginal”.

Dr. Jaffe and Ms. Dallaire testified that historical trauma and neglect, including the treatment of children in residential schools, are the root causes of abuse which is passed down through generations. Ms. Dallaire testified that by the time children came out of residential schools they were so abused, so deprived, so neglected, and so angry, that they often repeated the behaviour that had harmed them.

[21] The second topic – the prevalence and harms associated with child sexual abuse – has also become a matter of judicial notice and binding precedent as a result of decisions like R. v. D. (D.) (2002), 2002 44915 (ON CA), 163 C.C.C. (3d) 471 (Ont. C.A.) and R. v. S. (W.B.); R. v. P. (M.) (1992), 1992 2761 (AB CA), 73 C.C.C. (3d) 530 (Alta. C.A.). Sparrow J. summarized this body of evidence as follows:

Dr. Peter Jaffe, a leading child abuse expert in Canada, explained that a major national study conducted in 1984, the Badgley Report, found that 53% of adult women and 31% of adult men in Canada reported experiencing unwanted sexual acts, including sexual abuse, when they were children and during their early adulthood. A more recent Ontario study of childhood sexual abuse conducted in 2002 found that 12% of female respondents and 4% of male respondents experienced sexual abuse as a child (Ontario Mental Health Supplement Survey). Other international studies found that 20% of females and 5 to 10% of males reported that they were sexually abused during childhood.

Dr. Jaffe testified that child sexual abuse often goes undisclosed because victims are unable to understand that they were exploited and abused, or do not want to compromise family relationships. Dr. Jaffe testified that most child sex abuse victims are victimized by someone they know – a family member or somebody within the victim’s existing social network (e.g., a school, a church, a sports team) in a relationship of trust. Child sexual abuse is not strongly correlated to social or socioeconomic class, or household income.

Dr. Jaffe stated that most child sex offenders (80%) are not pedophiles (i.e., adults who prefer children for sexual gratification), but take advantage of opportunities which arise with vulnerable children. They may experience lower inhibitions due to the influence of alcohol or drugs, or the fact that they are alone with the child, but generally have control mechanisms to permit them to not offend. They may “groom” the child by slowly developing a bond.

Dr. Jaffe also testified that the incidence of childhood sexual abuse within Aboriginal communities in Canada is believed to be very high. According to a 2009 article in the Journal of Aboriginal and Indigenous Community Health, (Collins – Vezina et al) studies conducted over the past 20 years report that 25% to 50% of Aboriginal youth have been sexually abused – a higher rate of occurrence than that in the general Canadian population. Studies have found that 80% to 90% of Aboriginal men seeking assistance for addictions were sexually abused in childhood, and all men who were in residential schools reported having experienced sexual abuse. Other studies show that Aboriginal women receiving mental health services had an incidence rate of 80% to 90% for childhood sexual abuse, and that 80% of young Aboriginal women involved in the sex trade experienced childhood sex abuse.

Dr. Jaffe testified that recidivism rates are high in all communities. A major study in Canada found that 42% of child sexual abuse perpetrators were re-convicted for sexual or violent crimes during a 15 to 30 year follow-up period.

He also explained that over the last 20 years, an extensive body of scientific literature has developed concerning the short and long term impact of child sexual abuse. In general, victims of childhood sexual abuse may experience a number of potentially serious adverse outcomes, such as emotional and behavioural problems, anxiety, depression, flashbacks, and nightmares. These problems frequently continue into teenage years and adulthood with very serious adverse consequences, such as addiction, depression, employment problems, and criminal behaviour including crimes of violence. Girls who flee sexual abuse in the house may end up in the sex trade.

[22] The third topic – the efficacy of incarceration, as a response to child sexual abuse, including the use of mandatory minimum sentences – was the most contentious issue amongst the expert witnesses. Sparrow J. summarized this body of evidence as follows:

… Dr. Jaffe opined that the criminal justice system must convey the message that sex crimes against vulnerable children are not tolerated by the community, and that offenders will suffer serious consequences, including incarceration. This is particularly important as the “vast majority” of adults who commit child sex offences possess the control mechanisms necessary to avoid re-offending. In his view, a “short and sharp shock” of incarceration serves to meaningfully deter these offenders, reinforces public confidence in the criminal justice system, and encourages victims to disclose incidents of abuse.

Dr. Gabor testified that only a small percentage of child abuse cases are investigated by police and child protection services, despite greater public awareness and attention paid to the problem by authorities. An offender often commits many offences before being detected. A leading study, the Canadian Incidence Study of Reported Child Abuse and Neglect, conducted over a three month period in 1998 determined that the number of child sexual abuse allegations investigated by child protection services was 2.29 per 1,000 children.

As stated previously, Dr. Jaffe testified that child sex offenders do have control mechanisms, and that the criminal justice system must convey the message that serious consequences, including incarceration, will be suffered by child sexual abusers. In chief, he agreed that a short sharp period of incarceration, is a meaningful deterrent.

With regard to deterrence, he also stated, however, that

“… obviously the first deterrent is public education to know that it is a crime, that sexual abuse of children is harmful, that it does harm in the short term and long term, and it is against the law …” “The next level is that there be a swift and certain detection, that if a child is abused, that they would be empowered and know that they have the right to tell and go to somebody …” “… knowing that there is some assurance that there would be detection, investigation and arrest, if an offence has occurred, would be critical in terms of preventing abuse and having everyone recognize that not only is it against the law, but it is not going to be tolerated in the community.”

Citing certain experts, Dr. Jaffe also stated that perpetrators may be deterred by the embarrassment and shame that comes with arrest, and consequences such as losing jobs and family relationships. In cross-examination, he agreed that jail is not the only serious consequence a court can impose as “being ordered into treatment is serious as well”. He also agreed that treatment without jail could successfully deal with the offender’s problems.

Dr. Gabor testified that there is growing evidence that an element of rationality is applied to all crimes, including crimes of sexual aggression, thus deterrence can be effected as perpetrators factor in risk of serious consequences. Grooming behaviour often noted in child sex offenders is an example of the application of “rational choice theory”. In his view, the prevalence of child abuse, as demonstrated by the Badgely Report, requires emphasis on denunciation and deterrence.

With respect to mandatory minimums, Gabor testified that they accomplish denunciation. The certainty of incarceration engages rationality, and acts as a deterrent by enhancing the level of shame associated with an offence.

With respect to mandatory minimums, Professor Roach testified that the mandatory minimum sentence is in essence ineffectual, as it “will have its most bite with respect to the least serious version of conduct that constitutes that offence, combined with the offender characteristics that are best suited for rehabilitation and restoration”.

[23] Perhaps the most interesting aspect of this particular part of the expert evidence was the testimony of two Aboriginal elders, concerning the use of incarceration in traditional and in modern Aboriginal sentencing schemes. Sparrow J. summarized their evidence as follows:

Brian Myers, the Crown’s expert on aboriginal justice and child sexual abuse, testified that traditional Haudenosaunee (Iroquoian) law provides that children are sacred because they represent and guarantee the future of the community. The Mohawks are part of the Haudenosaunee people. The law considers children to be particularly sacred during their first seven years of life, when their first beliefs, understandings, and perceptions of the world are developed. Child sexual assault is considered to be a very serious offence that constitutes an attack on the future of the community.

Mr. Myers testified that traditional Iroquois practice was to immediately segregate child sex offenders from the community in a guarded secure facility as a public safety measure to prevent any re-offending, and retaliation by the victim’s family or others. Visitors were permitted.

Following an investigation, a person found to be a child sex offender would be approached three times by community members in an effort to resolve the matter peacefully. A perpetrator who failed to resolve the matter through this process faced banishment from the community under Haudenosaunee law. In the alternative, where a victim’s clan, family or relatives insisted on stringent consequences, traditional Haudenosaunee practice allowed for a penalty up to and including capital punishment.

Joanne Dallaire, also an Aboriginal elder and expert, testified that in recent years, the Aboriginal community has become evenly divided as to whether an Aboriginal child sex offender should be incarcerated. While half of the Aboriginal community favours and supports the use of traditional community based healing methods to rehabilitate Aboriginal child sex offenders, the other half of the community supports incarceration as an appropriate criminal justice outcome.

She confirmed that child sexual abuse is clearly prevalent in Aboriginal communities today, and a matter of great concern. Many victims speak out about their experience in order to deter and educate others.

Relying on her experience as a counsellor, Ms. Dallaire agreed that a relatively short period of incarceration may help certain offenders come to terms with past misconduct, and deter them from future misconduct or recidivism. She also agreed that incarceration may represent a first stage of the healing process for offenders who respond to incarceration by accepting responsibility for past misconduct.

Also relying on his experience counselling Aboriginal offenders, Mr. Myers agreed that a period of incarceration may facilitate the process of accepting responsibility for past misconduct and initiating the healing process.

Mr. Myers noted that various tribal courts in the United States are continuing to sentence Aboriginal offenders, including sexual abuse offenders, to periods of incarceration of up to two years in tribal jails operated by Aboriginal corrections staff. He explained that tribal jails in the U.S. are culturally-adapted secure facilities which provided inmates with traditional healing practices and western-type counselling, and receive funding from the U.S. government and specific insurers. Tribal jails physically resemble correctional detention facilities.

In cross-examination, he testified that not all child sex abusers need to go to jail to “begin the healing process”. When asked if jail would have helped an offender who had not been detected but came to him seeking help, he said no – that jail might have shut down the potential for healing. When asked for an example of child abuse being effectively addressed in an Aboriginal community, he discussed the investigation of a priest in the U.S. which led to revelation that many of his victims in turn became offenders, but “… within the community, and through the approaches that we brought to it and the therapists, and the people we had helping with it we were able to achieve peace and begin to put that community back together”.

He testified that while he was working as a treatment director on a reserve in Alberta, he was also successful with certain “culturally based” treatment programs that did not involve jail.

D. THE S. 15 EQUALITY RIGHTS ISSUE

(i) Introduction

[24] B. and the Intervenor both conceded that s. 151(b) of the Criminal Code is a non-discriminatory statute, on its face, in the sense that Aboriginal and non-Aboriginal offenders are all subject to the same mandatory minimum fourteen day sentence, when the Crown proceeds summarily. In other words, it is common ground between the parties that there is no formal inequality. The s. 15 argument in this case alleges substantive inequality, that is, “adverse effects” discrimination against a historically disadvantaged group. In brief summary, the argument is that the criminal justice system has already been found to be discriminatory against Aboriginal offenders, causing their significant over-representation in Canadian prisons. Mandatory minimum sentences simply add to or worsen this existing discriminatory system.

[25] There are numerous other mandatory minimum sentences in the Criminal Code, including the life imprisonment sentence that has long been imposed for murder, and now including numerous offences involving firearms (for example, ss. 85, 95, 236, 244, 272, 273, 279, 344, and 346) and numerous offences involving sexual exploitation and sexual assaults against children (for example, ss. 152, 153, 155, 163.1, 172.1, 172.2, 212(2), 271, 272(2), and 273). All of these Criminal Code provisions enact mandatory minimum sentences in facially neutral terms, like s. 151(b), that apply to all offenders whether Aboriginal or non-Aboriginal. The fourteen day minimum sentence, found in the 2005 amendments to s. 151(b), is the most lenient minimum custodial sentence in the Criminal Code. As already noted above, there is no suggestion that this particular minimum sentence, which has now been increased to ninety days as a result of the 2012 amendments, amounts to “cruel and unusual treatment or punishment”. It is conceded, in this regard, that the fourteen day minimum sentence is not “grossly disproportionate”, as that term is used in the s. 12 Charter case law. B. and the Intervenor also conceded that their substantive equality argument, if it is correct in law, has significant implications for all of the mandatory minimum sentences that are now found in the Criminal Code. It could be argued that they all have adverse effects on a historically disadvantaged group that are similar to the adverse effects that are said to flow from s. 151(b).

(ii) The modern s. 15(1) analytical framework

[26] In its most recent s. 15(1) equality rights decision, Quebec v. A, supra, nine members of the full Court delivered four separate reasons for judgment that arrived at four different conclusions. However, all four sets of reasons agreed that the modern test for establishing a violation of s. 15(1) is the two part analytical framework that has emerged from R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 at para. 17 and Withler v. Canada, 2011 SCC 12, [2011] 1 S.C.R. 396 at para 30, namely:

1. Does the law create a distinction based on an enumerated or analogous ground?

2. Does the distinction create a disadvantage by perpetuating prejudice or false stereotyping?

See: Quebec v. A, supra at paras. 171 and 185 per LeBel J., at para. 324 per Abella J., at para. 384 per Deschamps J., and at paras. 416 and 418 per McLachlin C.J.C.

[27] The fact that nine members of the Court arrived at four different results, when applying the same two part test derived from Kapp and Withler, reflects the somewhat malleable or flexible nature of that test as well as the inherent difficulty that has always existed when applying s. 15(1) equality rights to governmental action. As Iacobucci J. put it in Law v. Canada, 1999 675 (SCC), [1999] 1 S.C.R. 497 at para. 2, speaking for a unanimous Court, s. 15 “is perhaps the Charter’s most conceptually difficult provision”.

[28] In the case at bar, Sparrow J. found that B. had met the first part of the Kapp/Withler test but not the second part. B. and the Intervenor both submit that Sparrow J. was correct, in relation to the first part of the test, but that she erred in relation to the second part. The Crown submits that neither branch of the Kapp/Withler test has been met in this case and that Sparrow J. erred in relation to the first branch but correctly decided the second branch. All parties also made extensive argument about s. 1 of the Charter, in the event that the mandatory minimum sentence in s. 151(b) is found to violate s. 15(1) of the Charter.

(iii) Does the legislation create a distinction based on an enumerated or analogous ground?

[29] In terms of the first branch of the Kapp/Withler test, it is clear that s. 151(b) of the Criminal Code does not create any distinction, on its face, amongst those who commit the offence of sexual interference. They are all subject to the same fourteen day minimum sentence when the Crown proceeds summarily. Any distinction, therefore, between different groups of s. 151 offenders can only arise from disproportionate “adverse effects” caused by the mandatory minimum sentence.

[30] This form of distinction, which focuses on indirect legislative effects rather than direct legislative terms and purposes, was addressed in Withler, supra at paras. 62 and 64. McLachlin C.J.C. and Abella J. gave the unanimous judgment of the Court and acknowledged that this kind of s. 15(1) “distinction” is “more difficult” to establish:

The role of comparison at the first step is to establish a “distinction”. Inherent in the word “distinction” is the idea that the claimant is treated differently than others. Comparison is thus engaged, in that the claimant asserts that he or she is denied a benefit that others are granted or carries a burden that others do not, by reason of a personal characteristic that falls within the enumerated or analogous grounds of s. 15(1).

In some cases, identifying the distinction will be relatively straightforward, because a law will, on its face, make a distinction on the basis of an enumerated or analogous ground (direct discrimination). This will often occur in cases involving government benefits, as in Law, Lovelace and Hodge. In other cases, establishing the distinction will be more difficult, because what is alleged is indirect discrimination: that although the law purports to treat everyone the same, it has a disproportionately negative impact on a group or individual that can be identified by factors relating to enumerated or analogous grounds. Thus in Granovsky, the Court noted that “[t]he CPP contribution requirements, which on their face applied the same set of rules to all contributors, operated unequally in their effect on persons who want to work but whose disabilities prevent them from working”. In that kind of case, the claimant will have more work to do at the first step. Historical or sociological disadvantage may assist in demonstrating that the law imposes a burden or denies a benefit to the claimant that is not imposed on or denied to others. The focus will be on the effect of the law and the situation of the claimant group. [Emphasis added].

[31] Sparrow J. relied heavily, at this first stage of analysis, on the findings made by the Supreme Court of Canada in R. v. Gladue, supra concerning Aboriginal over-representation in Canadian prisons, Aboriginal alienation from the criminal justice system, and discrimination against Aboriginals within the criminal justice system. She reasoned as follows (at paras. 88-9):

In my view, the above noted passages from Gladue represent a clear finding that Aboriginals have suffered historical disadvantage not only because of sociological factors, but because of discrimination in the criminal justice system. These findings are binding on lower courts, unless a significant change since the time of the decision has been established: see R. v. Katigbak 2010 ONCA 411 at para. 84. Both the Court in Gladue and Parliament, through section 718.2(e), have directed judges to consider historical and sociological factors and restorative justice in sentencing. In my view, in preventing sentencing judges from considering a conditional sentence or an even shorter sentence than that prescribed by s. 151(b), the mandatory minimum denies convicted aboriginals the fullest possible range of sentencing options which according to Gladue and s. 718(2)(e) should be given consideration.

In so doing, in my view, the mandatory minimum creates a distinction between Aboriginal and non-Aboriginal offenders, as submitted by the Applicant. The former group loses the fullest benefit of an analysis which was deemed necessary to address historical disadvantage not similarly recognized as having been suffered by the latter group. The loss of this benefit or entitlement is in my view a form of adverse impact or indirect discrimination as defined in Withler. It has a negative effect, disentitling Aboriginal offenders to the fullest benefit of a refined analysis on sentencing, even if the effect on sentence would ultimately have been minimal. This culturally specific analysis was designed to apply regardless of the seriousness of the offence: see R. v. Kakekagamick (2006), 2007 ONCA 90, 84 O.R. (3d) 664 at paragraph 38 (C.A.), leave to appeal to S.C.C. denied.

[32] In assessing the correctness of the above reasoning, it is appropriate to begin by noting that s. 151(b) had no “disproportionately negative impact”, as required by Withler, on B. himself. Sparrow J. imposed a sentence of eight months imprisonment, in the specific circumstances of this case. In other words, B. received a sentence substantially in excess of the fourteen day mandatory minimum established by Parliament. I will address the appropriate length of B.’s custodial sentence, later in these reasons, when considering the sentence appeal. At this stage, when considering only the s. 15(1) Charter challenge to s. 151(b), it is sufficient to state that this was a case that required a sentence of imprisonment and it was not an appropriate case for imposition of a conditional sentence. Accordingly, the fourteen day mandatory minimum sentence had no adverse impact on B. I will explain my reasons for reaching this conclusion.

[33] As previously noted, the offence of sexual interference did not carry any minimum sentence, prior to the 2005 amendments. Similarly, the offence of sexual assault, which equally applied to B.’s conduct in this matter, did not carry any minimum sentence prior to the 2012 amendments. A substantial body of sentencing case law developed under these regimes, unencumbered by any statutory directives as to the minimum appropriate sentence. B. was found guilty of both sexual interference and sexual assault and, in my view, it would have been an error in principle to have imposed a conditional sentence for either offence under the pre-2005 sexual interference or pre-2012 sexual assault sentencing regimes. This conclusion depends on the particular mitigating and aggravating circumstances in this case. It also depends on the state of sentencing law in this province in such a case, prior to the enactment of any of the relevant mandatory minimums.

[34] There were certain mitigating circumstances in this case, in particular, the following:

• B. was a first offender;
• He had experienced a very difficult childhood, involving poverty, physical and sexual abuse, and racism, which he appeared to have largely overcome, thus suggesting some real strength and resilience in his character;
• He also appeared to have good rehabilitative potential as there was no repetition of the offence, he complied with terms of bail for over four years, he had an excellent employment record, he lived in a stable and supportive long term relationship with his wife, and strong character references were provided by his two older sisters and his wife.

[35] However, the above mitigating factors were somewhat weakened at the time of trial by the absence of the kind of exceptional circumstances that are seen in those rare cases where conditional sentences have been imposed, and upheld, for breach of trust sexual assaults committed against children. For example, there was no guilty plea, no signs of remorse or regret, no insight into his own conduct, no commitment to a program of counseling and treatment, and he was not elderly and in poor health.

[36] Against this somewhat mixed record of mitigating factors, the following aggravating factors had to be considered:

• The very young age of the five year old complainant;
• The significant breach of trust by a grandfather, who was solely responsible for babysitting his granddaughter during an overnight sleep-over;
• The impact on the complainant and her mother, which appeared to be of some significance but will only be fully known at some point in the future;
• It was not a case of brief external fondling, over clothing, but involved naked contact between penis and vagina for a period of time.

[37] Although the above aggravating factors were significant, they did not include the most serious kinds of circumstances that are seen in cases at the upper end of the appropriate sentencing range, namely, collateral violence, threats, repetition, penetration, or premeditated periods of grooming or luring.

[38] In light of the above mix of circumstances, this was an offence that was situated in the mid-range of gravity for breach of trust sexual assaults against children. As Sparrow J. put it, “the acts of the accused [were] far up the scale from” cases at the bottom end of the appropriate sentencing range which involve “brief sexual touching over a child’s clothing”. Similarly, the circumstances relating to the offender situated the case somewhere in the mid-range of appropriate sentences as there was some mitigation but it was not as strong as in other cases. Finally, there were no exceptional circumstances that would justify a departure from the principle that a custodial sentence is generally required, in cases of breach of trust sexual assault against children, in order to give primacy to the principles of denunciation and deterrence. In other words, absent a mandatory minimum sentence, and giving full weight to the Gladue approach to the sentencing of Aboriginal offenders (which I will address below), as well as to the principle of restraint embodied in s. 718.2(e), this case required a custodial sentence of some length greater than the fourteen day mandatory minimum sentence enacted by Parliament in 2005.

[39] A long line of binding authority had already held and continued to hold, prior to and after 2005, that conditional sentences would “rarely” be appropriate in cases involving sexual assault and sexual interference against children, when committed by adults in positions of trust, due to the pressing need to emphasize denunciation and deterrence in such cases. See: R. v. G.L. (2003), 2003 57437 (ON CA), 175 C.C.C. (3d) 564 at para. 7 (Ont. C.A.); R. v. D. R. (2003), 2003 9127 (ON CA), 169 O.A.C. 55 at paras. 8-9 (C.A.); R. v. G.C.F. (2004), 2004 4771 (ON CA), 188 C.C.C. (3d) 68 at para. 13 (Ont. C.A.); R. v. A.F.R., 2007 ONCA 114, [2007] O.J. No. 540 at para. 2 (C.A.); R. v. S.K., [2007] O.J. No. 2912 at paras. 44-50 (S.C.J.), aff’d [2008] O.J. No. 1481 (C.A.). A further line of binding authority had consistently reversed conditional sentences imposed at trial, or had imposed and upheld custodial sentences, in cases with somewhat similar or equally sympathetic circumstances to the ones in the case at bar. See: R. v. Mianskum, [2000] O.J. No. 5807 (S.C.J.); R. v. Levert (2001), 2001 8606 (ON CA), 159 C.C.C. (3d) 71 at para. 41 (Ont. C.A.); R. v. R.W.D. (2005), 2005 20711 (ON CA), 198 C.C.C. (3d) 541 at paras. 11-13 (Ont. C.A.); R. v. Cerda (2008), 2008 ONCA 438, 237 O.A.C. 23 at paras. 6-7 (C.A.); R. v. L.J.D., [2008] O.J. No. 993 (S.C.J.); R. v. Manjra (2009), 2009 ONCA 485, 250 O.A.C. 257 at paras. 28-31; R. v. Butt, [2012] O.J. No. 3553 (S.C.J.). Finally, a further line of binding authority had illustrated the kind of exceptional mitigating circumstances, not present in the case at bar, that would justify a conditional sentence in cases of breach of trust sexual assault against children. See: R. v. Esmonde (2002), 2002 49348 (ON CA), 161 O.A.C. 40 (C.A.); R. v. D.A.H. (2003), 2003 48216 (ON CA), 171 C.C.C. (3d) 309 (Ont. C.A.); R. v. W.J.N., [2012] O.J. No. 4980 (S.C.J.).

[40] When applying the Gladue approach to sentencing in cases involving serious offences where there is a pressing need for denunciation and deterrence, such as sexual assaults against children committed by adults in a position of trust, it is now settled law that both Aboriginal and non-Aboriginal offenders will generally receive sentences of imprisonment. See: R. v. Wells (2000), 2000 SCC 10, 141 C.C.C. (3d) 368 at paras. 34, 39-42 and 44 (S.C.C.); R. v. Gladue, supra at paras. 33, 54, 74, 78-9, and 93; R. v. Kakekagamick (2006), 2006 28549 (ON CA), 211 C.C.C. (3d) 289 at paras. 35-6, 42-3 and 71-4 (Ont. C.A.). This does not mean that the Gladue approach to sentencing is somehow abandoned in the case of serious offences. The difficult circumstances in which B. was raised as a child, the likely inter-generational impact of various forms of abuse to which he was subjected, and the availability of culturally appropriate sentencing procedures and sanctions, and B.’s amenability to those procedures and sanctions, all remain important considerations in the determination of an appropriate sentence. See: R. v. Ipeelee, supra at paras. 84-87. I have already reviewed the evidence in this case that was relevant to these considerations (at paras. 15 and 17) and I will have more to say on this issue when considering the sentence appeal (at paras. 72 and 75).

[41] Applying the above authorities, the range of appropriate custodial sentences in a case like the present one, for both Aboriginal and non-Aboriginal offenders, was a mid-range reformatory sentence. In Levert, supra, a six month sentence was upheld. In Manjra, supra, a seventeen month sentence was upheld. In Mianskum, supra, an eight month sentence was imposed. By imposing an eight month custodial sentence followed by three years probation, Sparrow J. correctly situated the present case within the range of appropriate sentences suggested by the case law in this province. As a result, the fourteen day mandatory minimum sentence, enacted by Parliament in 2005 for s. 151(b) offences, had no impact on B., let alone the “disproportionately negative impact” required by Withler, supra.

[42] When faced with this initial difficulty in mounting their s. 15(1) argument, both B. and the Intervenor conceded that the mandatory minimum sentence in s. 151(b) does not result in “adverse effects” in the case of all Aboriginal offenders. Indeed, they submitted that it is only in the exceptional case, like D.A.H., supra, where prior to 2005 the courts would have imposed a non-custodial sentence but where the fourteen day minimum now prevented such a sentence, that the statutory provision can be said to have “a disproportionately negative impact on a group or individual” Aboriginal offender, as required by the first branch of Withler. I would add that there is a similar “adverse effect” in very minor cases, such as brief external sexual touching over clothing, where the courts would likely have imposed a non-custodial sentence, prior to 2005, if the accused was a first offender. This adverse impact, requiring a fourteen day jail sentence in the exceptional case and in the very minor case, is presumably what Sparrow J. meant when she held, in the passage from her reasons already quoted above, that the denial of access to a non-custodial sentence “has a negative effect, disentitling Aboriginal offenders to the fullest benefit of a refined analysis on sentencing, even if the effect on sentence would ultimately have been minimal” [emphasis added].

[43] I have difficulty accepting that the “minimal” adverse effect, in subjecting the rare Aboriginal offender like D.A.H. to a fourteen day jail sentence when he would otherwise have received a conditional sentence, and thereby adding to that extent to the existing over-representation of Aboriginal offenders in Canadian prisons, amounts to the “disproportionately negative impact on a group or individual” referred to in Withler. In this regard, Iacobucci J. stated in Law, supra at para. 86 that “adverse effects” cases can involve a facially neutral statute that “has a meaningfully different effect upon the claimant” [emphasis added]. Mr. Ford and Mr. Rudin, counsel for B. and for the Intervenor, conceded that if their argument is correct on this point, then it will mean that every mandatory minimum sentence in the Criminal Code must be held to contravene the first stage of the Kapp/Withler framework for s. 15(1) analysis. That is because the legislative policy underlying uniform mandatory minimum sentences stresses denunciation and never makes allowance for those minor cases or exceptional cases where the legislated minimum does not fit the individualized circumstances of a particular offence committed by a particular offender in the most mitigated circumstances. In these rare cases, the courts would likely not impose a mandatory minimum sentence, but for Parliament’s legislative directive, and so there will always be some “adverse effect” in that minor or exceptional case. This “adverse effect” could be significant, for example, in the case of murder where the mandatory minimum sentence is life imprisonment. See: R. v. Latimer (2001), 2001 SCC 1, 150 C.C.C. (3d) 129 at paras. 72-90 (S.C.C.). The “adverse effect” would also be significant if the minimum sentence was “grossly disproportionate” to minor instances of the particular offence, like the old seven year minimum for importing a narcotic. See: R. v. Smith (1987), 1987 64 (SCC), 34 C.C.C. (3d) 97 (S.C.C.). However, where the mandatory minimum sentence is fourteen days imprisonment, as in s. 151(b), it is much more difficult to argue that a sentence that can be served on four weekends has a “disproportionately negative impact” that is of constitutional proportions.

(iv) Does the distinction create a disadvantage by perpetuating prejudice or false stereotyping?

[44] At the second stage of analysis, the issue is whether the distinction identified at the first stage is discriminatory. As Abella J. put it in her majority judgment on this point in Quebec v. A, supra at paras. 322 and 331, this second stage involves a “flexible and contextual inquiry”:

Second, the words “without discrimination” require more than a mere distinction in the treatment given to different groups or individuals. Instead, McIntyre J. found [in Andrews] that those words were a form of qualifier built into s. 15 which limits the distinctions forbidden by the section to “those which involve prejudice or disadvantage”. McIntyre J.’s definition of discrimination contains the following statement about what constitutes “disadvantage”:

… discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. [Emphasis of Abella J.].

[45] The approach at this second stage of analysis is said to be “flexible and contextual”, in determining whether a legislative distinction is discriminatory, because a number of “contextual factors” should be considered. The Court has identified some of these suggested factors but has stressed that they are neither exhaustive nor essential in all cases. As McLachlin C.J.C. and Abella J. put it in Withler, supra at para. 66:

The particular contextual factors relevant to the substantive equality inquiry at the second step will vary with the nature of the case. A rigid template risks consideration of irrelevant matters on the one hand, or overlooking relevant considerations on the other: Kapp. Factors such as those developed in Law – pre-existing disadvantage, correspondence with actual characteristics, impact on other groups, and the nature of the interest affected – may be helpful. However, they need not be expressly canvassed in every case in order to fully and properly determine whether a particular distinction is discriminatory (see Ermineskin Indian Band; A.C. v. Manitoba; Hutterian Brethren). Just as there will be cases where each and every factor need not be canvassed, so too will there be cases where factors not contemplated in Law will be pertinent to the analysis. At the end of the day, all factors that are relevant to the analysis should be considered. As Wilson J. said in Turpin,

In determining whether there is discrimination on grounds relating to the personal characteristics of the individual or group, it is important to look not only at the impugned legislation which has created a distinction that violates the right to equality but also to the larger social, political and legal context.

[46] Most recently, in her concurring majority judgment on this point in Quebec v. A, supra at para. 418, McLachlin C.J.C. stated that even the references to “prejudice” or “stereotyping” in the second branch of the Kapp/Withler test are merely “useful guides” in the flexible contextual inquiry into “discrimination”:

While the promotion or the perpetuation of prejudice, on the one hand, and false stereotyping, on the other, are useful guides, what constitutes discrimination requires a contextual analysis, taking into account matters such as pre-existing disadvantage of the claimant group, the degree of correspondence between the differential treatment and the claimant group’s reality, the ameliorative impact or purpose of the law, and the nature of the interests affected: Withler, at para. 38; Kapp, at para. 19.

[47] Having found some “minimal” adverse effects at the first stage of s. 15(1) analysis, Sparrow J. went on to conclude that the second stage requirement of “discrimination” had not been proved. She reasoned as follows (at paras. 133-5):

As stated above, Gladue has recognized repeatedly that discrimination and overrepresentation of Aboriginals exist in the criminal justice system; however, the mandatory minimum must be analyzed with regard to the objects of the scheme and circumstances of the groups impacted. Those circumstances include:

1. A severe problem of sexual abuse of vulnerable children in this case and in general;

2. Evidence that the problem has always been treated seriously in the Aboriginal community and has resulted in at least temporary removal of the offender from the community. The use of incarceration to address this pressing problem today is supported by a significant percentage of Aboriginals, and efforts are being made to culturally adapt the system;

3. The fact that the 14 day minimum is very brief, in light of the severity of the problem;

4. Expert testimony that short, sharp periods of incarceration may serve as a deterrent, particularly if rationality is involved; and

5. Evidence that although the criminal justice system has been found to be discriminatory, the many causes of these problems do not appear to include the imposition of longer sentences on Aboriginals than non-Aboriginals. Nor was evidence proffered of bias in core decision making of Crown Attorneys.

Furthermore, the Applicant has not clearly established a link between the14 day minimum and the perpetuation of prejudice and discrimination in the criminal justice system. Obviously, it is possible that an offender who is jailed for 14 days may have received a conditional sentence if he had not been deprived of judicial consideration of that option; however, the link between the possibility, with regards to an unknown number of offenders, and perpetuation of discrimination in the criminal justice system constituting a breach of substantive equality is tenuous. I appreciate the difficulty in proving such a link, given that decisions to impose community based sentences which were not made because of a mandatory minimum cannot be analyzed or quantified; however, the link cannot be assumed.

As stated in Withler, the question is whether the lines drawn are generally appropriate. Because of the factors referred to above, in the light of case law which in its entirety supports consideration of incarceration of all offenders including Aboriginals in serious matters such as child sexual abuse, and despite the problem of overrepresentation, I find that the lines drawn are not inappropriate. It has not been shown that the impugned mandatory minimum perpetuates disadvantage, prejudice or stereotyping or otherwise breaches the principles of substantive equality as defined at step two of the Withler test. The test has not been met.

[48] The Appellant B. and the Intervenor submit that Sparrow J. erred at this second stage of s. 15(1) analysis. In particular, they make two broad arguments: first, they submit that Sparrow J. took the legislative goals and purposes underlying s. 151(b) into account, in determining whether there was “discrimination”, rather than reserving these considerations for the s.1 stage of Charter analysis; second, they submit that Sparrow J. failed to appreciate that adding even a small number of short custodial sentences in minor or exceptional sexual interference cases, to the pre-existing over-representation of Aboriginals in the prison system, is discriminatory as it adds to or exacerbates existing discrimination. Both of these submissions are said to be strengthened by the Court’s recent decision in Quebec v. A, supra.

[49] I am not satisfied that Sparrow J. erred at the second stage of her s. 15(1) analysis. All of the factors that she took into account, as set out above in the passage quoted from her reasons, were relevant to the “flexible and contextual” inquiry into “discrimination”. In particular, she did not err in including “the objects of the scheme and circumstances of the groups impacted” as relevant factors, and she did not err in considering the impact of the fourteen day mandatory minimum sentence on “an unknown number of offenders, and [any] perpetuation of discrimination” it might cause, and she did not err in asking whether “the lines drawn [by s. 151(b)] are generally appropriate”. The s. 15(1) case law supports all of these lines of inquiry as they are part of what Wilson J. described as “the larger social, political and legal context”, in the passage from her reasons on behalf of a unanimous Court in R. v. Turpin (1989), 1989 98 (SCC), 48 C.C.C. (3d) 8 at 34 (S.C.C.), later adopted by the unanimous full Court in Withler, supra at para. 66, and already quoted above. In Law, supra at paras. 59 and 75, Iacobucci J. stated that “the larger context of the legislation in question and society’s past and present treatment of the claimant and of other persons or groups with similar characteristics or circumstances” should be taken into account in assessing whether “a reasonable person in circumstances similar to those of the claimant” would view the legislation as discriminatory. Finally, in Withler, supra at paras. 45and 54, the Court stressed that the most relevant contextual factors in a given case may be “the nature and purpose of the impugned legislation in relation to the claimant’s situation”. These are the very factors on which Sparrow J. focused.

[50] The parties agree that three of the four relevant contextual factors identified by the Court in Law v. Canada, supra, were not contentious in this case. Sparrow J. had already found the first of those factors, namely “pre-existing disadvantage”, at the first stage of analysis, due to the conclusions reached in Gladue, supra concerning disproportionate representation of Aboriginal offenders in the prison system and the underlying causes of this phenomenon. The issue at the second stage of analysis was whether s. 151(b) worsened this “pre-existing disadvantage” and, if so, to what extent. The third Law factor, namely, “ameliorative purpose or effects” was not relevant as s. 151(b) is not designed to advance the interests of some other more disadvantaged group. The fourth Law factor, namely, the “nature of the interest affected” was easily applied in this case as s. 151(b) affects the liberty interests of sex offenders. This is a fundamental interest but the particular effect on liberty caused by s. 151(b) is of short duration.

[51] The only one of the four Law factors that was difficult and contentious in this case was the second factor, namely, “correspondence”. In Law, supra at paras. 69-70, the Court described this factor as “the relationship between the ground upon which the claim is based and the nature of the differential treatment. Some of the enumerated and analogous grounds have the potential to correspond with need, capacity, or circumstances … As a general matter … legislation which takes into account the actual needs, capacity, or circumstances of the claimant and others with similar traits in a manner that respects their value as human beings and members of Canadian society will be less likely to have a negative effect on human dignity”.

[52] The leading text writers agree that the second Law factor – “correspondence” – has proved to be the most important. Professor Peter Hogg, in Constitutional Law of Canada, 5^th Ed. (2007 Thomson Canada Ltd.), Vol. 2 at p. 633, stated the following:

While judicial discussion of human dignity often ranges far and wide, the correspondence factor seems to have become the key to the impairment of human dignity. It is the Court’s evaluation of that factor that normally yields the outcome, even if the other factors point in the other direction. What does the correspondence factor really mean? It seems to come down to an assessment by the Court of the legitimacy of the statutory purpose and the reasonableness of using a listed or analogous ground to accomplish that purpose.

[53] Justice Robert Sharpe and Professor Kent Roach, writing in The Charter of Rights and Freedoms, 4^th Ed. (2009 Irwin Law Inc.), at pp. 332-3, described “correspondence” and its impact in the decided cases, as follows:

If the legislative distinction is the result of a deliberate design, which is not in itself discriminatory and which has sought to take into account the claimant’s traits or circumstances, it will be more difficult to establish discrimination. On the other hand, the distinction will be more difficult to justify if it is based on stereotyping in the form of attributed as opposed to actual characteristics.

… correspondence has generally proven to be decisive. One study suggests that in fifteen cases released by the Supreme Court since Law – up to Canadian Foundation for Children in 2004 – the outcome of the Court’s analysis of the correspondence factor matched the outcome of the overall inquiry into the existence of discrimination. In contrast, the first, third, and fourth factors have matched the outcome of the discrimination inquiry seven, six, and eight times out of fifteen, respectively. On a purely quantitative level, then, the correspondence factor has dominated in the application of the Law test.

[54] It can be seen that the “correspondence” factor explicitly looks at the design and purpose of the legislative scheme and asks whether it takes the actual “needs, capacity or circumstances” of the claimant group into consideration. In other words, in the present case, does the legislative purpose underlying the fourteen day mandatory minimum sentence in s. 151(b) reflect the actual needs and circumstances of Aboriginal sex offenders? If the legislative scheme does correspond generally to the needs and circumstances of the claimant group it is unlikely to be discriminatory.

[55] Nothing in Quebec v. A, supra suggests that this well established and usually decisive s. 15(1) factor has now been relegated to the s. 1 stage of Charter analysis or that the “correspondence” factor has somehow been abandoned or changed. In her concurring majority judgment in that case in relation to the s. 15(1) issue, McLachlin C.J.C. expressly referred to “the degree of correspondence between the differential treatment and the claimant group’s reality” as one of the relevant contextual factors. See: Quebec v. A, supra at para. 418. Abella J.’s reasons became the majority judgment on the s. 15(1) issue, due to McLachlin C.J.C.’s concurrence, so it is unlikely they disagreed about the ongoing relevance of “correspondence” at the s. 15(1) stage of analysis. Abella J. did state that “whether the claimant group’s exclusion was well motivated or reasonable” and whether the state’s “legislative purpose” can “justify the reasonableness of the infringement” are issues that only arise at the s. 1 stage of analysis. See: Quebec v. A, supra at para. 333. However, this kind of analysis of legislative purpose at the s. 1 stage, as a basis for justifying or over-riding s. 15(1) rights, is a very different thing from asking whether the legislative scheme is generally tailored to the actual needs and circumstances of the claimant group and is, therefore, not in violation of s. 15(1) at all. In regard to this latter assessment of legislative purpose (which relates to “correspondence”), Abella J. held that “a significant proportion of unmarried spouses” (the claimant group in that case, referred to as de facto spouses), suffered “actual adverse impact” due to the impugned legislation. She concluded that “many spouses in de facto couples” could be “left economically vulnerable or disadvantaged” as a result of the legislative distinction between the rights of married and unmarried spouses upon separation. In other words, the legislative scheme in that case was not well tailored to the actual needs and circumstances of significant numbers of unmarried spouses in the claimant group. It was on that basis that Abella J. held that the legislation “perpetuates historic disadvantage” of unmarried spouses. In my view, both Abella J. and McLachlin C.J.C. continued to apply the “correspondence” factor in its traditional form, at the s. 15(1) stage and not at the s. 1 stage of Charter analysis. See: Quebec v. A, supra at paras. 346 and 356.

[56] The difficult issue in the present case, in applying the “correspondence” factor, lies in assessing how perfect the “correspondence” has to be. As discussed above, the fourteen day mandatory minimum sentence for sexual interference has no real impact on most members of the claimant group, including B. At the time of the 2005 legislation, the s. 151 offence only applied to child victims under the age of fourteen and the courts had already decided that the pressing needs of denunciation and deterrence meant that adult offenders in these cases generally received custodial sentences that were longer that the newly enacted minimum. Accordingly, the fourteen day minimum sentence corresponded to the actual needs and circumstances of most s. 151(b) offenders. The real impact of the 2005 legislation was on the rare exceptional case, like D.A.H., supra, and on very minor cases involving brief external sexual touching over clothing by first offenders. In this small group of cases, the courts could appropriately impose, and sometimes did impose, a non-custodial sentence prior to the 2005 amendments. For this group of sex offenders, both Aboriginal and non-Aboriginal, the new legislation arguably did not correspond to their actual needs and circumstances. To the extent that Aboriginal offenders in this small group must now go to jail for a minimum of fourteen days, it is also arguable that the discriminatory over-representation of Aboriginals in Canadian jails is worsened to some degree. In other words, the new legislation did not correspond perfectly to the needs of the entire claimant group.

[57] It is in this context that Sparrow J. weighed considerations such as the severity of the problem of child sexual abuse in both Aboriginal and non-Aboriginal communities, the degree of acceptance of a short sharp jail sentence in both communities as a means of sending a uniform denunciatory and deterrent message, the expert evidence that most instances of child sexual abuse are subject to rational control mechanisms, the short duration of the fourteen day minimum, and the absence of any evidence suggesting that the new minimum has led to longer sentences for Aboriginal sex offenders as opposed to non-Aboriginal sex offenders. Based on these considerations, Sparrow J. concluded that the link between the new mandatory minimum sentence and the “perpetuation of discrimination in the criminal justice system … is tenuous”.

[58] I am satisfied that the above analysis accords with the existing case law concerning the “correspondence” factor. There is no doubt that the 2005 legislation was not perfectly tailored to the actual needs and circumstances of all members of the claimant group but it did accord with the needs and circumstances of most members, including B. The small number of Aboriginal sex offenders who would not previously have received a short fourteen day jail sentence, compared to the substantial majority for whom the legislation was appropriate, did not render s. 151(b) discriminatory. The leading authority on this point is McLachlin C.J.C.’s majority judgment in Canadian Foundation for Children, Youth and the Law v. Canada (2004), 2004 SCC 4, 180 C.C.C. (3d) 353 at paras. 54-68 (S.C.C.), a case that turned decisively on the “correspondence” factor. McLachlin C.J.C. held that s. 43 of the Criminal Code, which exempts parents and teachers from the law of assault in the case of reasonable corrective force used against a child, was a legislative provision that created a distinction based on age. The first stage of s. 15(1) analysis was, therefore, satisfied. However, the distinction generally corresponded to the actual needs and circumstances of the claimant group, namely, those children who were subjected to reasonable corrective force. She stated the following in relation to the “correspondence” factor:

Children also depend on parents and teachers for guidance and discipline, to protect them from harm and to promote their healthy development within society. A stable and secure family and school setting is essential to this growth process.

… s. 43 also ensures the criminal law will not be used where the force is part of a genuine effort to educate the child, poses no reasonable risk of harm that is more than transitory and trifling, and is reasonable under the circumstances. Introducing the criminal law into children’s families and educational environments in such circumstances would harm children more than help them.

… The decision not to criminalize such conduct is not grounded in devaluation of the child, but in a concern that to do so risks ruining lives and breaking up families – a burden that in large part would be borne by children and outweigh any benefit derived from applying the criminal process.

… The claimants here are children. The Law analysis requires that the Court consider whether the limited exemption from criminal sanction for parents and teachers corresponds to the needs of children. This is a necessary step in determining whether the distinction demeans children and treats them as less worthy. We should not artificially truncate the s. 15 equality analysis because similar considerations may be relevant to justification in the event a breach of s. 15 is established.

Some argue that, even if the overall effect of s. 43 is salutary, for some children the effects of s. 43 will turn out to be more detrimental than beneficial. To this, two responses lie. First, where reasonable corrective force slips into harmful, degrading or abusive conduct, the criminal law remains ready to respond. Secondly, as Iacobucci J. stated in Law, supra at para. 105, compliance with s. 15(1) of the Charter does not require “that legislation must always correspond perfectly with social reality”. Rather,

[n]o matter what measures the government adopts, there will always be some individuals for whom a different set of measures might have been preferable. The fact that some people may fall through a program’s cracks does not show that the law fails to consider the overall needs and circumstances of the group of individuals affected …[Emphasis added].

(Gosselin, supra, at para. 55)

[59] Paraphrasing the above passages from Law, Gosselin, and Canadian Foundation for Children, the same reasoning can be applied to the case at bar: “the overall needs and circumstances” of Aboriginal sex offenders who commit s. 151 offences against children require denunciatory and deterrent sentences in order to sanction and correct their behaviour and to protect the families and communities in which they chose to live; these kinds of measures promote the offenders’ “healthy development within society”, do not pose a “risk of harm that is more than transitory and trifling”, and aim to prevent “ruining lives and breaking up families”; “the overall effect” of a short sharp fourteen day minimum sentence is therefore “salutary”; the fact that there is also a small number of Aboriginal s. 151(b) offenders “for whom a different set of measures might have been preferable” does not render the legislation discriminatory and in violation of s. 15(1) of the Charter [emphasis added].

[60] The above quoted pronouncements from Law, supra at para. 105, Canadian Foundation for Children, Youth and the Law, supra at para. 67, and Gosselin v. Quebec, 2002 SCC 84, [2002] 4 S.C.R. 429 at para. 55, are all to the effect that s. 15(1) of the Charter does not require “perfect correspondence” between the impugned legislation and the actual needs and circumstances of all members of the claimant group. The Court has repeatedly held that “perfect correspondence” is an unrealistic standard that Parliament will rarely achieve. In its most authoritative recent decision on s. 15(1), Withler v. Canada, supra at paras. 67 and 71, the Court repeated this same point twice in the unanimous judgment of McLachlin C.J.C. and Abella J.:

… the contextual inquiry at the second step of the s. 15(1) analysis will typically focus on the purpose of the provision that is alleged to discriminate, viewed in the broader context of the scheme as a whole.

… It will ask whether the lines drawn are generally appropriate, having regard to the circumstances of the persons impacted and the objects of the scheme. Perfect correspondence between a benefit program and the actual needs and circumstances of the claimant group is not required.

The question is whether the lines drawn are generally appropriate, having regard to the circumstances of the groups impacted and the objects of the scheme. Perfect correspondence is not required. [Emphasis added].

[61] I appreciate that s. 151(b) of the Criminal Code is not a benefits program and that it is a penal sanction and so the affected interests are different than in Withler. However, the s. 15(1) principle concerning “perfect correspondence” is not limited to benefits cases. The Canadian Foundation for Children case involved a Criminal Code provision that de-criminalizes what would otherwise be a culpable assault on a child. In other words, it was not a benefits case. Furthermore, the “perfect correspondence” principle is a common sense proposition that is broadly applicable in s. 15(1) cases. Crafting legislation always involves a number of competing policies and interests and the Charter of Rights has never required legislative perfection under any of its provisions. As LaForest J. stated in his oft-quoted majority judgment in R. v. Lyons (1987), 1987 25 (SCC), 37 C.C.C. (3d) 1 at 46 (S.C.C.):

“It seems to me that s. 7 of the Charter entitles the appellant to a fair hearing; it does not entitle him to the most favourable procedures that could possibly be imagined.”

Similarly, in R. v. Valente (1985), 1985 25 (SCC), 23 C.C.C. (3d) 193 at 207-212 (S.C.C.), LeDain J. gave the unanimous judgment of the Court and held that s. 11(d) of the Charter does not guarantee “the ideal” or “the most rigourous and elaborate conditions of judicial independence” and that a statutory provision that “falls short of the ideal or highest degree of security” may, nevertheless, comply with the Charter. In other words, the Charter has never required perfection.

[62] In pointing to the rare exceptional case like D.A.H., supra, as the basis for their argument that s. 151(b) perpetuates discrimination against Aboriginal offenders, B. and the Intervenor are not paying heed to the “perfect correspondence” principle. I am satisfied that Sparrow J. did apply this principle when she referred to Withler and asked “whether the lines drawn [by s. 151(b)] are generally appropriate”, when she referred to the “very brief” length of the fourteen day minimum sentence, and when she acknowledged the real possibility that some “unknown number of offenders” might have more appropriately received a conditional sentence rather than a minimum fourteen day jail sentence. In this case, the “correspondence” factor strongly pointed to the conclusion that s. 151(b), as enacted in the 2005 amendments, is not discriminatory. As Iacobucci J. put it in Law, supra at para. 105, the impugned statutory “provisions correspond to a very large degree with the needs and circumstances of the persons whom the legislation targets” [emphasis added].

[63] For all the above reasons, I am satisfied that Sparrow J. did not err at the second stage of s. 15(1) analysis and in finding that s. 151(b) is not discriminatory. Accordingly, the appeal from Sparrow J.’s finding that s. 151(b) of the Criminal Code does not violate s. 15(1) of the Charter is dismissed.

E. THE S. 7 JUDICIAL IMPARTIALITY ISSUE

[64] Counsel for B. briefly argued a second basis for seeking to declare s. 151(b) unconstitutional. He submitted that the legislation leads to a form of judicial bias or lack of impartiality on an institutional level. See: R. v. Lippé (1991), 1990 18 (SCC), 64 C.C.C. (3d) 513 at 530-1 (S.C.C.). The Intervenor did not support this s. 7 argument.

[65] Mr. Ford conceded that there is substantial over-lap between his s. 15 and s. 7 Charter arguments. In brief summary, his s. 7 argument is that the effect of all mandatory minimum sentences on Aboriginal offenders is to require that the judiciary send that offender to jail and thereby exacerbate the existing discriminatory over-representation of Aboriginal offenders in the Canadian prison system. This leads to a perception of institutional bias or lack of impartiality in all judges who abide by Parliament’s statutory directive to incarcerate without regard for the individual circumstances of the particular Aboriginal offender.

[66] The test for institutional impartiality established in Lippé, supra at p. 533, as a constitutional precept, is derived from the common law test for judicial bias, namely, whether a reasonable and informed person, viewing the matter realistically and practically and having thought the matter through, would perceive the judiciary of a particular court to be biased. See: Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369 at 394.

[67] Assuming that s. 151(b) does not violate the s. 12 Charter protection against “cruel and unusual treatment or punishment”, and does not violate the s. 15(1) Charter right to equality, it is therefore a constitutionally valid sentencing statute which the judiciary are bound to apply under our system of law. A reasonable and informed member of the public, seeing judges apply a constitutionally valid statutory sentencing provision, would not perceive the judiciary to be institutionally biased.

[68] For all these reasons, the s. 7 argument has no merit and was properly dismissed by Sparrow J. In the result, the appeal from Sparrow J.’s ruling upholding the constitutionality of s. 151(b) is dismissed.

F. THE SENTENCE APPEAL

[69] B.’s final ground of appeal is a conventional submission concerning the fitness of the eight month custodial sentence. Once Sparrow J. had dismissed the constitutional attack on the fourteen day mandatory minimum sentence, Mr. Ford submitted that a ninety day intermittent jail term served on weekends was the appropriate sentence as it would satisfy the need for denunciation and deterrence and would also allow B. to keep his job. At the hearing of the appeal, Mr. Ford reinforced this position by tendering a fresh evidence affidavit from B. I have already quoted the important part of that affidavit (at para. 17 above). Mr. Ford submits that it indicates that B. has now accepted his conviction at trial and, as a result, he now feels “shame” and expresses a willingness “to work with the Aboriginal community” and to engage in counselling programs.

[70] I have already concluded in my reasons concerning the first stage of s. 15(1) analysis (at paras. 32-41 above), that the eight month custodial sentence imposed by Sparrow J. at trial was situated squarely within the range of appropriate sentences for this offence and this offender. The particular mix of aggravating and mitigating circumstances in this case called for a mid-range reformatory sentence and Sparrow J. did not err in imposing an eight month period of custody followed by three years probation. The only live issue on appeal, in my view, is whether there have now been material changes in circumstance.

[71] I am satisfied that there are two such changes and that the sentence ought to be reduced to ninety days, or three months, to be served intermittently on weekends and followed by the three year period of probation imposed by Sparrow J. The first material change is the evidence set out in B.’s affidavit tendered on appeal. It strengthens the mitigating circumstances in the case as it is the first sign from B. of acceptance, shame, and a commitment to change, albeit belatedly. In light of B.’s assertion in his affidavit that he is willing to work with the Aboriginal community, it also strengthens the impact in this case of the Gladue approach to sentencing, which must be considered when determining the length of a custodial sentence. See: R. v. Gladue, supra at para. 79; R. v. Kakekagamick, supra at para. 43.

[72] The second material change is that a further twenty months has now passed since Sparrow J. sentenced B. He has remained on bail throughout, he has not re-offended and has not breached his terms of bail, he has continued to work, and he has maintained his supportive relationship with his wife. He is now almost sixty years old and he has been before the courts, awaiting a final decision in this case, for almost six years. Through no fault of his own, his case has become a “test case” for determining whether this relatively new mandatory minimum sentence violates s. 15(1) equality rights of Aboriginal offenders.

[73] It is settled law that delays in trial proceedings and delays during the appeal period, although within constitutional norms, can have a mitigating effect on sentence. See: R. v. Symes (1989), 1989 7173 (ON CA), 49 C.C.C. (3d) 81 at 96-7 (Ont. C.A.); R. v. Boucher (2004), 2004 17719 (ON CA), 186 C.C.C. (3d) 479 at para. 33 (Ont. C.A.); R. v. Bosley (1992), 1992 2838 (ON CA), 18 C.R. (4^th) 347 (Ont. C.A.); R. v. Sheng (2010), 2010 ONCA 296, 254 C.C.C. (3d) 153 at para. 60 (Ont. C.A.); R. v. Williams (2009), 2009 ONCA 342, 244 C.C.C. (3d) 138 at paras. 29-32 (Ont. C.A.). The substantial delays in this case have undoubtedly caused ongoing uncertainty for B. and, equally significantly, if he was now to serve an eight month custodial sentence and likely lose his job, at age 59, there would be additional hardship in attempting to re-enter the job market at age 60.

[74] I am satisfied that a three month or ninety day custodial sentence, served on weekends, would adequately reflect the importance of denunciation and deterrence in this case but would also encourage what appear to be the beginnings of restorative and reformative change in B. Following the ninety day custodial sentence, the three year period of probation imposed by Sparrow J. will be served on the same terms. Those terms include the ones recommended in the Gladue report, already set out above at para. 17. B. may never succeed in repairing the damage he has caused to his relationship with his daughter-in-law and his granddaughter but, at least now, it is possible to begin to take steps in that direction.

G. CONCLUSION

[75] In the result, the appeal from the constitutional ruling concerning s. 151(b) is dismissed. The appeal from the eight month sentence is allowed. B. must surrender to this Court, at the time of the release of these reasons, in accordance with the terms of his bail. He will then serve a ninety day sentence, beginning on a Friday, the date to be determined by the Court at the time of his surrender. Following the ninety day sentence, he will complete the same three year probationary period imposed by Sparrow J. and he will comply with the s. 161 and s. 490.012 orders imposed by Sparrow J.

[76] I would like to thank all counsel for the quality of their work, which greatly assisted me in a difficult case, and for the focused and efficient way in which they marshalled the large volume of materials and made their submissions at the two day hearing of the appeal.

M.A. Code J.

Released: July 19, 2013

COURT FILE NO.: CR-11-00000179-00AP

DATE: 20130719

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

T.M.B.

– and –

ABORIGINAL LEGAL SERVICES OF TORONTO

REASONS FOR JUDGMENT

M.A. Code J.

Released: July 19, 2013