Court File and Parties
COURT FILE NO.: CR 13-00018-00MO DATE: 2016-09-06
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – S.A. Applicant
Counsel: Lynn Robinson, for the Crown/Respondent James E. Weppler, for the Applicant/Accused
HEARD in Gore Bay: August 17, 2016
BAN OF PUBLICATION PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA
REASONS FOR JUDGMENT on Constitutional challenge and Sentence
DEL FRATE, J. (orally)
[1] Although I will be using the full names in reading my reasons, for the purposes of the record and for any other publication, only the initials will be used. This order applies to the complainant, the accused, and the witnesses in view of the small community where everyone resides and everyone knows each other.
Overview
[2] Following a jury trial, the applicant was convicted of sexual assault, sexual exploitation, and sexual interference in relation to two incidents involving his 14 year old stepdaughter. Pursuant to the Kienapple principle, the respondent stayed the sexual assault and sexual exploitation convictions leaving the conviction for sexual interference under s. 151 of the Criminal Code of Canada, R.S.C. 1985 c. C-46.
[3] Prior to sentencing, the applicant brought an application to challenge the mandatory minimum sentence for sexual interference. On the date of the offences – approximately September 2010 and September 2011 – the mandatory minimum for a conviction for sexual interference where the respondent proceeds by indictment (as occurred here) was 45 days imprisonment. Subsequently, Parliament increased the minimum sentence to one year in prison. The applicant submits that the mandatory minimum of 45 days violates s. 12 of the Canadian Charter of Rights and Freedoms in that it subjects either the accused or a reasonably hypothetical accused to a grossly disproportionate sentence.
The offences
[4] Briefly, the facts are as follows:
i. In approximately September 2010, the complainant awoke one night in her bed to find the applicant in bed with her. The applicant’s hand was underneath her underwear and over her vagina. The complainant further testified that the applicant may have been asleep at the time of this occurrence.
ii. On or about September 27, 2011, late in the evening and when her mother and siblings were asleep, the applicant entered the complainant’s room, sat on her bed and questioned her about the pornography that he had observed on her computer. He then stated that if she wanted to learn about sex, he would be prepared to teach her and that he was good at it. Since there was no response, he felt she was feigning sleep. He touched her on the shoulder over her clothing. The complainant leaped out of bed and in so doing the applicant’s hand touched her hip area over clothing. The complainant then ran from the room and slept in another room. The following morning, she went to school. After school she went to her grandmother’s, G.P. The police became involved. She has been away from the family home ever since.
[5] The applicant suggests that since he may have been asleep during the September 2010 incident, the factual foundation for the jury’s verdict ought to be the September 2011 incident. This is especially so since the jury, during their deliberations, questioned if they could convict on the September 27, 2011, incident even if they found that there was insufficient evidence for a conviction on September 2010 incident. For the purposes of my analysis I am accepting the applicant’s proposition, pursuant to s. 724(1) of the Criminal Code.
[6] I conclude that the touching of the complainant by the applicant was non-consensual and inappropriate given the applicant’s position of trust over the complainant. The contact, however, was only on one occasion and was a fleeting touch over clothes and not an intimate body part. The jury must have found that the applicant’s verbal proposition elevated the otherwise minor contact to one with a sexual purpose. Still, the offence is at the lower side of misconduct captured by offence of sexual interference.
Issues
Applicant
[7] The applicant asserts that s. 151 (a) of the Criminal Code as it was in 2010-2011 violates s. 12 of the Canadian Charter of Rights and Freedoms by being grossly disproportionate and that it cannot be saved by s. 1.
[8] The applicant submits that an appropriate sentence would be in the range of a conditional sentence or a maximum of 14 days imprisonment to be served intermittently. To support his argument, the applicant points to the minor nature of the crime – one incident of contact, over clothing and to a non-sexual part of the complainant’s body – and the abundant mitigating factors in this case, including the applicant’s status as an Indigenous person.
[9] In the alternative, the applicant contends that there are a number of reasonable hypotheticals that would render the mandatory minimum unconstitutional.
[10] The applicant states that the case law is clear that reasonable hypotheticals can be used to evaluate whether a mandatory sentence could amount to a grossly disproportionate sentence in a reasonably foreseeable case: see R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 57. A reasonable hypothetical must be a situation that may reasonably be expected to arise, not something that is far-fetched or marginally imaginable: see Nur, at para. 56. Thus, a court must not consider the worst possible cases not before the court. See R. v. Jones (1984), 1984 ABCA 207, 57 A.R. 266 (C.A.) affirmed , [1986] 2 S.C.R. 284. Nor will a court consider hypothetical situations that are not “common occurrences”: see R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90.
[11] The applicant puts forward two examples of reasonably foreseeable scenarios in which the mandatory minimum punishment would be grossly disproportionate:
i. The accused is a 21 year old Aboriginal offender with no criminal record. He struggles with alcohol addiction issues. The complainant is a 15 year old girl. At a party, the accused consumes alcohol and touches the complainant over her clothing on her buttocks. He is charged with sexual interference. Before sentencing, he completes a residential rehabilitation program for alcohol use. He pleads guilty and expresses extreme remorse for his conduct. If he goes to jail he will lose his first and only job.
ii. The accused is a grade 12 student who has just turned 18. One day on the bus to school he, on a dare from his friends, pokes the breast of another student over her clothing using a ruler. She is just shy of her 16th birthday. The incident is observed by the bus driver, who reports it to the school and ultimately the police. The accused immediately acknowledges his conduct, apologises and pleads guilty. The accused has no criminal record, has led an otherwise exemplary life, and has been accepted to university.
[12] The applicant contends that sending either of these hypothetical offenders to jail for 45 days would shock the conscience of most Canadians.
Respondent
[13] The respondent submits that an appropriate sentence would be one year imprisonment. Consequently, a mandatory minimum of 45 days imprisonment is not unconstitutional.
[14] In relation to the reasonable hypotheticals, the respondent argues that no situation involving the sexual abuse of children is ever “minor”. Section 12 targets gross disproportionality, not simple unreasonableness; accordingly, while a sentence of 45 days might be stiff, there is no reasonably foreseeable case where it is so excessive as to outrage standards of decency.
Analysis
[15] Section 12 of the Charter protects against the State imposing punishments that would be “cruel and unusual”. The Supreme Court of Canada in R. v. Lloyd, 2016 SCC 13, 334 C.C.C. (3d) 20, recently reiterated what is meant by “cruel and unusual punishment” under s. 12 of the Charter. The court stated, at para. 22:
A sentence will infringe s. 12 if it is “grossly disproportionate” to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: Nur, at para. 39; R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1073. A law will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others Nur, at para. 77.
[16] The court in Lloyd explained what is required for a sentence to be “grossly disproportionate”, at para. 24:
This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment. To be “grossly disproportionate” a sentence must be more than merely excessive. It must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society: Smith, at p. 1072, citing Miller v. The Queen, [1977] 2 S.C.R. 680, at p. 688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14. The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate. [Emphasis added].
[17] To determine whether a mandatory minimum violates s. 12, the court must follow two steps: see Lloyd, at para. 23. First, the court must consider “what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code.” Second, “the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the offence and its circumstances”.
[18] Accordingly, I must first consider what the appropriate sentence should be in this case or in the case of a reasonably hypothetical offender.
An appropriate sentence
[19] At this hearing, the applicant called four witnesses, G.M., D.F., D.K. and L.M. As well, a presentence report and a Gladue report were filed.
[20] G.M. testified that he has known the applicant and his family for 27 years. He has worked for the applicant and describes him as a friend and an employer who he can trust. He describes him as fair, a good family person, responsible and respected in the community.
[21] As an elder and member of the Sentencing Circle, he concludes that incarceration would not serve any purpose. Rather, the applicant should continue in his healing journey prescribed by the elders and in accordance with Anishinaabe customs. Such healing would be preferable to incarceration since incarceration leaves many of the Anishinaabe persons bitter and angry. In this case, incarceration would probably result in the applicant’s business closing, meaning that anywhere from 10 to 40 members of the community would be without work.
[22] G.M. did acknowledge, however, that if house arrest were available, it would be accepted by the community as would an intermittent sentence or probation.
[23] D.F. testified that in her experience, being involved in justice circles in northern communities, the Anishinaabe healing programs are preferable to terms of imprisonment. She admitted that incarceration is appropriate in sexual assault cases if they are outrageous and involve severe beatings. Further, she accepted the proposition that sexual contact with a child, especially by someone in a position of trust, would not be acceptable to the family and to the community. She further accepted that a conditional sentence, or an intermittent sentence, followed by a period of probation would be appropriate. In addition, she testified that the applicant and his family are well known in the community and she described the applicant as having a positive impact as an employer and as a family person.
[24] D.K. is a community wellness worker and clinician in a northern community. She has acted as a counsellor to the applicant and his family following these charges. Family counselling was undertaken without the complainant since a court order prevented contact between the complainant and the applicant. She testified that the applicant is continuing his healing. She also testified that healing should continue in a traditional fashion and incarceration should not be considered especially when there is some skepticism among some members of the community that these offences took place even though the jury found the applicant guilty.
[25] L.M. is a lawyer by profession and is in charge of generating Gladue Reports and providing alternatives to the justice system on Manitoulin Island. She is a firm believer in the holistic healing practices of the Anishinaabe and believes they are preferable to incarceration. She is a member of the Sentencing Circle that dealt with the applicant. The Circle’s recommendation after two lengthy meetings was that a custodial sentence should not be considered, but rather the applicant should continue healing in the traditional fashion. The western approaches to justice do not meet the Anishinaabe expectations for justice.
[26] The respondent then called G.P., the complainant’s grandmother, who also testified at the trial. G.P. testified that following this incident, the complainant’s life has been greatly affected as she no longer lived with the family unit. The family itself has broken up. She has used drugs and alcohol and she is struggling at this time. She is upset that no assistance has been offered to the complainant and that all of the treatment seems to be addressed to the applicant, but none to the complainant.
[27] She takes a different view from the other witnesses that incarceration would not be accepted by the community. It is her experience as a member of the community and from speaking to other members that the justice system should entertain more serious penalties as opposed to “just a slap on the wrist.” She said not enough is being done to protect the children in the community.
Factors to Consider
Gravity of the offence
[28] As the respondent points out, sexual offences against children are grave crimes with significant life-altering consequences to the victims. This case is no exception as is reflected in the victim impact statement. Although it is close to six years since these incidents took place, the effects are still present and if anything, they might be more severe since the victim continues to hurt and has self-doubts about her role in the family breakup and her own life. She is still fearful, distrustful, anxious, sad and depressed. For whatever reason, she has not received the counselling that she so desperately needs and no real explanation was presented as to why help of that nature was not offered immediately following the reporting of the incidents. It is extremely clear to me that she needs this treatment and the sooner the better if there is to be any type of reconciliation with the applicant and, most importantly, the family unit. I urge the complainant to seek out the appropriate agencies that may assist her.
Mitigating Factors
[29] A pre-sentence report and Gladue report were submitted. They indicate the following.
[30] The applicant is a 45 year old male status Indian and a band member of a northern community Indian reserve. He was born and raised by his parents in a northern city in Ontario along with five siblings. His upbringing was stable and positive. His family was described as strong, healthy, and cohesive. The applicant moved to a northern community Indian reserve permanently at the age of 20 after spending several summers living there with his grandparents. His parents also moved to that northern community in the late 1990s.
[31] As of 2014, the applicant had been in a positive relationship with the complainant’s mother for approximately seven years. Between the pair, there are eight or nine children, two of which are the applicant and his partner’s shared biological children. The relationship has been strained as a result of these events and recently the parties separated. The applicant is described by many as family oriented and very good with his children.
[32] The applicant completed a business program in college and has taught at the college on and off for 25 years. He has been working for the W.T. since August 2015 where he ensures the trust income is managed properly. He also works part-time at N.G.R.C. as Finances and Administration Support. He enjoys his work and has a good relationship with his coworkers. The applicant also owns two businesses (F.T. and M.C.F.) and has done so for about 15 years. Depending on the time of the year, his businesses employ between 10 and 40 local workers.
[33] The applicant lives on the reserve and is particularly involved in his community and its traditions. He sits on a healing lodge committee and volunteers with a northern community historical society. He attends ceremonies and sweats.
[34] His family supports him. His mother and daughter both indicated they do not believe he committed the offence.
[35] The applicant regularly sees D.F., a mental health worker, to deal with the trauma stemming from the charges and subsequent interactions with the Children’s Aid Society. She indicated she has no concerns about the applicant and that he is a stable force for the family and children. She indicated that she believes the three younger children would be affected if the applicant received a jail sentence.
[36] The applicant has no criminal record. He advises he does not have friends who participate in criminal activity.
[37] The applicant indicated concern for his partner and children if he were to be incarcerated, and that he believes both of his businesses would “go under.” He has not accepted responsibility for the offence, which disentitles him to the mitigating effects of remorse.
Aggravating Factors
[38] The predominant aggravating factor in this case is the applicant’s position of trust in relation to the complainant. This offence took place late in the evening in their home after the mother and other members of the family had retired for the evening. It appears that the complainant herself might have been asleep. The applicant’s conduct forced her to jump out of bed and seek refuge in another room.
[39] As previously stated, the applicant has not expressed any remorse for his actions. In spite of a finding of guilt by the jury, he believes that the jury misunderstood his motives and that he is innocent of all charges. Further, s. 718(2)(a) makes the abuse of someone under 18 years a statutory aggravating factor.
Aboriginal Offender
[40] Section 718.2 (e) of the Criminal Code states as follows:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [Emphasis added].
[41] In R. v. Gladue, [1999] 1 S.C.R. 688, the Supreme Court of Canada interpreted s. 718.2 (e) and held that it mandated a particular remedial role for Aboriginal offenders. Parliament “chose to single out aboriginal offenders for particular attention” because the circumstances of Indigenous offenders are unique: see Gladue, at paras. 37 and 44. The court elaborated, at para. 66:
The background considerations regarding the distinct situation of aboriginal peoples in Canada encompass a wide range of unique circumstances, including, most particularly:
(A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and
(B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.
[42] The Court added, at para. 37:
The fact that the reference to aboriginal offenders is contained in s. 718.2(e), in particular, dealing with restraint in the use of imprisonment, suggests that there is something different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction.
[43] Several years later in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, the Supreme Court of Canada maintained this position, confirming, at para. 59, that s. 718.2 (e) is designed to “ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing”.
[44] The applicant’s pre-sentence report reflects an upbringing free of many of the systemic strains facing Indigenous peoples. There is no obvious link between his Indigenous status and upbringing, and the crime he committed against his stepdaughter. However, as held in Ipeelee (at paras. 81-83) and recently reiterated in R. v. Kreko, 2016 ONCA 367, no causal link between the applicant’s background factors and the commission of the offence is required before he would be entitled to have those factors considered on sentencing. Accordingly, I have taken into account the applicant’s Aboriginal status as part of my analysis.
[45] The applicant has led evidence through G.M., D.F., D.K. and L.M., all respected members of a northern community, about how the community would feel if he were incarcerated. Their belief is that incarceration is counterproductive and putting Aboriginal people in jail is destructive and destroys their spirit. A healing restorative program consisting of counselling and participation in traditional healing processes and programs would be more beneficial, not only to the applicant, but to the community in general. In fairness though, these same witnesses appreciate that offences involving violence against children in particular, may require incarceration and that remedies such as incarceration, conditional sentences, intermittent sentences and probation are necessary.
Parity
[46] The applicant offers three cases in which the accused and/or the circumstances of the offence were similar to this case: R. v. Akbari, 2014 ONSC 5198; R. v. B. (T.S.), 2014 BCPC 94; and R. v. T. (D.), 2011 ONCJ 106. In each, the facts could be said to be slightly more serious, and in each, the sentence given was less than 45 days imprisonment. Two of the cases involved a conditional sentence and one imposed the 14 day mandatory minimum in place at that time.
[47] The respondent argues that even where conditional sentences are legally available, they should rarely be imposed. The respondent cites R. v. D.R. (2003), 169 O.A.C. 55 (C.A.), as support for this proposition. While D.R. constituted markedly more serious facts, the commentary by the court at para. 8 is instructive:
While sentences imposed by sentencing judges attract considerable deference from this court, on the facts of this case, we conclude that the governing principles of denunciation and deterrence, both specific and general, cannot be satisfied by a conditional sentence. This court has repeatedly indicated that a conditional sentence should rarely be imposed in cases involving the sexual touching of children by adults, particularly where, as here, the sexual violation is of a vulnerable victim by a person in a position of trust.
[48] The respondent submits that there is a rising trend in sentencing for sexual abuse against children and a general consensus that such crimes call for higher sentences. Any cases relied upon, it argues, must have offence dates of post-2005 when the mandatory minimums were first introduced.
[49] Further, the respondent submits that the community is divided as to the appropriate penalty as the evidence of G.P. clearly indicates that she and other members of the same community feel that the courts are too lenient in these types of cases by imposing what is perceived in the community as “a slap on the wrist.”
Conclusion on Sentence for the Applicant
[50] There is no issue that all parties agree that offences of this nature, which deal with minors and in particular, from a person in authority, are deemed to be serious and not acceptable by the community. Although the parties differ as to what the appropriate penalty is, the common denominator is that such conduct must be addressed and dealt with appropriately. Repeatedly, our courts have stated that the primary objectives in sentencing offences of this nature are denunciation and deterrence. The imposition of a non-custodial sentence should rarely be considered especially where a position of trust is violated.
[51] This case presents a violation of trust with a 14 year old step-daughter, who the applicant states misinterpreted his intentions. Nevertheless, he was found guilty by the jury. Even though the intrusion was minimal and did not directly involve the touching of her intimate parts, the proposition coupled with the touching had a profound effect on the complainant. Those effects are still troubling her and will continue to do so for some time.
[52] The applicant is a productive member of the community, has no criminal record, and is undertaking rehabilitative steps through the traditional healing methods proposed by the Sentencing Circle and the Gladue report.
[53] A period of incarceration of 12 months as proposed by the respondent on the facts of this case is not realistic. I do agree however that some incarceration is in order and I find that the appropriate penalty is 90 days to be served intermittently.
Mandatory Minimums
Reasonable Hypotheticals
[54] I must now consider whether the mandatory minimum would be a grossly disproportionate sentence in a reasonably foreseeable case. I consider this in reference to the hypothetical suggested by the applicant.
[55] The first hypothetical is an Aboriginal first time offender touching the complainant over her clothing on her buttocks after having consumed alcohol. He completes a rehabilitation course for drug and alcohol abuse, pleads guilty, and expresses remorse. If sentenced to jail, he will lose his first and only job.
[56] The second hypothetical deals with another young offender who on the school bus touched the breast of another student through their clothing with a ruler.
[57] In my view hypothetical number 1 is “reasonably foreseeable”. Hypothetical number 2 is not a “common occurrence”.
[58] The applicant distinguishes the British Columbia case of R. v. E.M.Q., 2015 BCSC 201, 329 C.R.R. (2d) 29, in which the current mandatory minimum of one year imprisonment was upheld. He argues that the trial judge in that case erred in his/her analysis of the reasonable hypothetical by considering the hypothetical too generally and without reference to any personal characteristics of the hypothetical offender. The applicant argues that Justice Pearlman actually acknowledged that, with the right set of specific mitigating factors, there could be a situation giving rise to a grossly disproportionate sentence.
[59] The facts in E.M.Q. are not all that far removed from the facts of the present case. In E.M.Q., the accused was an Aboriginal man with a considerable number of mitigating personal circumstances and a limited criminal record. The complainant was the 14 year old female babysitter. The physical contact occurred over clothing on the complainant’s pelvic area, after a period of wrestling and resistance.
[60] One must consider that each case must be decided on its own facts and thus, the likelihood of different interpretations is high.
[61] In Nur, we are directed to use “common sense and experience”. There is no indication of what this means. The end result is a totally subjective decision which may end up in a myriad of different interpretations.
[62] Obviously, Parliament must have intended a particular set of circumstances where the 45 day minimum sentence would be appropriate. In argument, the respondent was not able to demonstrate a concrete example of such a case.
[63] Since prosecutorial discretion, such as diversionary measures, is now precluded from the formula, the logical conclusion is that the 45 days’ minimum would be appropriate in the two hypotheticals.
[64] Parliament is intent on protecting and ensuring the sexual integrity of individuals, especially minors, and in so doing, has seen fit to impose a minimum mandatory sentence. Parliament intends to send a message to persons with such inclinations that if they commit such an offence a term of imprisonment is awaiting them. Given that I would sentence both the applicant and the reasonably foreseeable offenders to sentences of at least 45 days imprisonment, I must now determine if the mandatory minimum is grossly disproportionate.
Context
[65] In order to determine if the mandatory minimum sentence is grossly disproportionate to the sentence I would have imposed, I must fully analyse the contextual factors in this case: see Morrisey and Nur.
[66] I have outlined the various considerations above, including the gravity of the offence, the particular circumstances of the offender and this case including his Aboriginal status, the recommendations of the Sentencing Circle and other mitigating factors, and the relevant principles of sentencing.
Case Law
[67] The respondent submitted several cases in which unsuccessful constitutional challenges were brought against the mandatory minimums for sexual interference.
[68] In R. v. Lonegren, 2010 BCSC 1678, 250 C.C.C. (3d) 377, the court concluded that the mandatory minimum of 45 days was not grossly disproportionate in the offender’s case. The court summarized as follows, at para. 66:
The issue may thus be restated. Is a sentence of 45 days, which can be served on three-day weekends and may be remitted to 30 days on good behaviour for a 51-year-old first-time offender of otherwise good character with good community and social support, for the deliberate touching of a sleeping 9-year-old child under the clothing and on the child’s buttocks, for a sexual purpose, so grossly disproportionate that Canadians would find it abhorrent or intolerable? Having regard to all the contextual factors, in my view, the answer to this question is no.
[69] A similar conclusion was reached in R. v. Craig, 2013 BCSC 2098.
[70] In R. v. R.R.G.S., 2014 BCPC 170, the trial judge determined that a conditional sentence would be a fit and appropriate sentence for the offender. The mandatory minimum in place at that time was 90 days. The trial judge concluded that the 90 day term of imprisonment was not grossly disproportionate: see paras. 73-81.
[71] In none of the above cases were any reasonable hypotheticals advanced or addressed. However, I agree with the reasoning outlined in those particular cases. The 45 days’ minimum or the 90 days that I impose in this case could be served on an intermittent basis. In this particular case, the applicant can continue his healing journey and continue to look after his employees and his family. The sentence would not shock the conscience of the community since a period of incarceration is necessary and the sentencing principles enunciated in s. 718 of the Code would be met.
[72] I must address the following procedural issues. The existing precedents mandate that the theoretical hypotheses have to be considered in all cases in determining whether the minimum mandatory sentence is constitutional.
[73] One must ask the rhetorical question of why such an analysis is necessary if the sentencing judge determines that the appropriate penalty is the mandatory minimum or higher. Surely, logic dictates that under those circumstances this analysis is not necessary.
[74] Secondly, although I am not in any way questioning the right of the respondent to elect the manner of proceeding in hybrid offences, one has to ask why the respondent proceeded by indictment in this case when a possible verdict of common assault was reasonably foreseeable. This consideration becomes all the more pertinent in view of R. v. Jordan 2016 SCC 27, 335 C.C.C. (3d) 403, where the Supreme Court mandates that trials in Superior Court must be completed within 30 months of the laying of the charges. If our resources are to be used efficiently, the respondent must exercise reasonable discretion in its election in similar circumstances.
Conclusion
Disposition
[75] I find that the mandatory minimum penalty of 45 days is not in contravention of the Charter and that application is dismissed.
[76] I sentence the applicant to a term of imprisonment of 90 days to be served intermittently commencing Friday, September 9, 2016, until Monday morning at 6:00 a.m. until such time as the 90 days have been completed.
[77] I further sentence the applicant to a period of probation of two years with the following conditions:
i. That the accused agrees to keep the peace and be of good behavior; ii. That the accused report to a probation officer within 7 days of completion of custody and thereafter as required; iii. That the accused take such counselling as recommended by his probation officer; and iv. That the accused follow the recommendation as outlined in the Gladue Report.
Ancillary Orders
[78] The ancillary orders are as follows:
i. That accused must comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for 20 years pursuant to s. 490.013 of the Criminal Code; ii. That the accused be prohibited for 10 years from possessing any firearms, weapon or ammunition as defined in s. 109 of the Criminal Code except for sustenance hunting; iii. That the appropriate authority be authorized to take bodily substances from the accused pursuant to s. 487.051 of the Criminal Code; iv. That an order issue under s. 743.21 of the Criminal Code preventing the accused from being within 50 meters of the dwelling-house where the complainant normally resides, and from communicating directly or indirectly with the complainant or the complainant’s grandmother G.P., except with the written revocable consent (filed with Probation Officer) of the complainant or the complainant’s grandmother G.P. in order to attend family counselling or any other reason they see fit; v. The accused is prohibited from having any contact with young children for 2 years pursuant to s. 161(1)(c) of the Criminal Code, including attending a public park or public swimming area where person sunder the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre, except to accompany his children or children where the accused stands in loco parentis while in the company of a person of 18 years of age or older and from having any contact – including communicating by any means – with a person who is under the age of 16 years, unless the accused does so under the supervision of a person whom the court considers appropriate;
[79] Order to issue as per reasons.
The Honourable Mr. Justice Robert G.S. Del Frate