R v ML, 2016 ONSC 7082

CITATION: R v ML, 2016 ONSC 7082

COURT FILE NO.: 13-SA5089

DATE: 2016/11/15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

M.L.

Applicant

Suzanne Schriek, for the Respondent

Mark Ertel, for the Applicant

HEARD: August 26, 2016

REASONS ON CHARTER MOTION

M. Linhares de Sousa J.

[1] M.L. was found guilty of the offences of sexual assault contrary to S. 271 of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”) and of sexual interference contrary to S. 151(a) of the Code, by a jury. The Crown election on these offences was by indictment. The Crown also elected to stay conviction on the S. 271 sexual assault count and to enter a conviction on the s. 151(a) sexual interference count.

[2] Section 151(a) mandates that, upon conviction, by way of indictment, a person is liable to imprisonment for a minimum term of one year. This increased mandatory minimum sentence (increased from previous 45 days minimum in jail) came into effect in August of 2012 and the offence took place in August of 2013. Consequently, upon his conviction, M.L. is liable to a mandatory minimum sentence of one year incarceration.

[3] M.L. brings an application to have the one year mandatory minimum sentence provided for under S. 151 of the Code declared to be of no force and effect, pursuant to the Constitution Act, 1982.

POSITION OF THE DEFENCE

[4] Defence Counsel submits that the mandatory minimum of one year incarceration would be a grossly disproportionate sentence in this case and hence, constituting cruel and unusual punishment, in violation of S. 12 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [the “Charter”]. Defence Counsel submits that S. 151(a) should, therefore, be declared to be of no force or effect pursuant to S. 52 of the Constitution Act, 1982, absent some s. 1 of the Charter justification.

[5] Defence Counsel argues that based on the facts of this case, as found by me in my Decision on the Fact Finding for Sentence, released August 12, 2016, a one year sentence would be grossly disproportionate for this offence and for M.L., the offender.

[6] For the reasons I gave in that Decision and which need not be repeated here, for the purposes of sentencing, the intentional touching for a sexual purpose consisted of touching and squeezing the bare breasts of T. O'C in the circumstances revealed by the evidence presented at trial.

[7] Defence Counsel also argues that based on the facts of this case, a one year sentence mandated by s. 151(a) is also a grossly disproportionate sentence for other offenders, considering reasonable hypothetical offenders, as described in the decision of the Supreme Court of Canada, R. v. Nur, 2015 SCC 15.

[8] In support of his position, Defence Counsel relies on a number of reported cases, found in para. 6 of his Factum. Defence Counsel argues that upon examining those enumerated cases which provide similar fact scenarios with comparable offenders, the sentencing range, rough or specific, is a sentence of less than 90 days.

[9] For these reasons Defence Counsel argues, firstly, that the sentence range for this offence and this offender is less than 90 days and secondly, that reasonable hypotheticals, including hypotheticals based on the fact situations and offenders in reported cases, would also yield sentences of less than 90 days, the sentence provided for in s. 151(a) should be found to be grossly disproportionate. Absent some s. 1 justification, it should be declared to be of no force and effect pursuant to the Constitution Act, 1982 because it violates s. 12 of the CCharter.

POSITION OF THE CROWN

[10] Crown counsel contests the application. Firstly, based on her submissions as to what is an appropriate sentence, in the circumstances of this case, namely a custodial sentence within a range of 12 to 15 months, Crown Counsel argues that it renders the constitutional issue moot and the Court ought to decline the engagement of a constitutional analysis of s. 151(a) of the Code.

[11] Secondly, Crown Counsel argues, that should the Court choose to engage in the constitutional scrutiny of s. 151(a) of the Code, based on all of the factors to be considered in the constitutional analysis as outlined in her arguments and factum, a proper rough range of sentence for the offence and type of conduct is a custodial sentence in the range of 9 to 15 months, without regard to the mandatory minimum sentence. Crown Counsel argues that when compared to the mandatory minimum of 12 months this cannot be considered grossly disproportionate so as to violate s. 12 of the Charter.

[12] Furthermore, Crown Counsel argues that with respect to stage two of the constitutional analysis, and examination of reasonable hypotheticals presented and relied on by Defence Counsel in his arguments, are devoid of any contextual setting, remote or extreme examples and hence, not reasonable.

[13] Finally, Crown Counsel argues that in the event the Court were to find that the mandatory minimum sentence found in s. 151(a) infringed M.L.’s Charter rights, it would, nonetheless be justified by the applicability of s. 1 of the Charter.

[14] In his oral argument, Defence Counsel conceded that if the Court accepts the position of the Crown that the proper rough range of sentence for the offence and type of conduct found in this case is 9 to 15 months, he could not argue that the mandatory one year incarceration mandated by s. 151(a) was a grossly disproportionate sentence.

R. V. NUR TEST

[15] In the case of R. v. Nur, supra, in paras. 38 to 46 the Supreme Court of Canada set out in great detail how a sentencing judge should apply the test for infringement of s. 12 of the Charter which the Supreme Court stated was set at a high bar. Paraphrasing from those paragraphs, the sentencing judge should, with respect to the specific offender, determine an appropriate sentence “for the purposes of the comparison demanded by this analysis”, by having regard to the sentencing objectives of s. 718 of the Code

[16] The fundamental purpose and relevant objectives of a sentence are found in s. 718 of the Code and are various. In brief they are the following:

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

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

(c) to separate offenders from society where necessary;

(d) to assist in rehabilitating offenders;

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

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

[17] Also to be taken in to consideration is s. 718.01 of the Code that specifically identifies offences against children and directs the courts, when imposing sentences for offences that involve the abuse of persons under 18 years of age, to give primary consideration to the objectives of denunciation and deterrence of such conduct.

[18] The sentencing judge should also, the Supreme Court directs, consider the following:

(a) The aggravating and mitigating factors involved in the circumstances of the offence including the specifically listed aggravating factors found in s. 718.2. of particular application to the facts of this case are s. 718.2 (ii.1), evidence that the offender, in committing the offence, abused a person under the age of 18; (iii), evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim; and (iii.1), evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

(b) The principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances as set out in s. 718.2(b). It may be added here that for this purpose an examination of sentences imposed in other similar cases can be helpful to the Court although it is rare that any two cases would be completely similar in all respects; and

(c) The principle that the courts should exercise restraint in imposing imprisonment as stated in s. 718.2(d) and (e).

(d) The fundamental principle found in S. 718.1 that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. With respect to this fundamental principle and the consideration of general deterrence, the Supreme Court in R. v. Nur, identifies how mandatory minimum sentences have the potential for departing from the principle of proportionality in sentencing which could result in grossly disproportionate punishment.

[19] At para. 46 of R. v. Nur, the Supreme Court concludes:

“To recap, a challenge to a mandatory minimum sentencing provision on the ground it constitutes cruel and unusual punishment under s. 12 of the Charter involves two steps. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. Then, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the mandatory minimum provision is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter.”

[20] The Supreme Court goes on to make clear that the Court, in this analysis, not only looks at the offender’s situation but at other reasonable foreseeable situations where the impugned law may apply. This may also include examining reported cases. At para. 65 of R. v. Nur, the Supreme Court states:

“…In the result a mandatory minimum sentencing provision may be challenged on the basis that it imposes cruel and unusual punishment(i.e. a grossly disproportionate sentence) on the particular offender before the court, or failing this, on the basis that it is reasonably foreseeable that it will impose cruel and unusual punishment on other persons.”

APPLICATION OF NUR TEST TO CASE OF M.L.

CIRCUMSTANCES OF THE OFFENCE

[21] With the above principles in mind, I firstly consider the factors of the offence before the Court. The relevant circumstances of the offence are as follows. At the time of the offence, the victim, T. O’C., was a 15 year-old girl and the accused was 50 years old. The victim and M.L. knew each other for almost the whole life of the victim. T. O’C. was the half-sister of M.L.’s biological daughter, C.. M.L. had had custody of C. since she was approximately 11 years old. At the time of the offence C. was an adult but continued to live with M.L..

[22] Despite growing up in different households, since their early childhood, the half-sisters, apparently with the consent and facilitation of their mother and M.L., spent time together regularly and were close. T. O’C. spent overnights at M.L.’s home and even went on holidays with her sister and M.L.’s extended family.

[23] It was also not unheard of that the half-sisters and even some of their friends would sleep in M.L.’s home and even in his bed. The evidence showed that nothing improper had ever happened until the night in question that led to these charges.

[24] While T. O’C. was not M.L.’s biological daughter, there is no question that he stood in a position of trust towards her. He was clearly her adult caregiver when she stayed at his home and that of her sister. He himself told the police that he considered her like a daughter. The evidence also revealed that he cared about the difficulties she was having with completing her education and wanted to help her with this. Furthermore, M.L. worked as a nurse by profession. The evidence showed that T. O’C., historically, would seek out his advice on medical issues, even those of the most intimate kind, and that they discussed these matters together with him giving her advice.

[25] On the night of the offence, T. O’C. had been spending a few days with her half-sister at M.L.’s home. That night T. O’C. was to sleep in M.L.’s bed with him, her half-sister sharing another bedroom with her boyfriend. There is no question there were other bedrooms in the house where T. O’C. could have slept. During the course of watching a movie T. O’C. had a discussion with M.L. about her personal circumstances. During the course of these discussions T. O’C. became anxious and M.L. began to give T. O’C. a massage, supposedly to relax her. M.L. had given T. O’C. massages before without any incident. During the course of this activity, both T. O’C. and M.L. became topless on his bed. They smoked some marijuana. M.L. then touched T. O’C. for a sexual purpose by touching and squeezing her breasts. When T. O’C. told M.L. to stop he did.

[26] T. continued sleeping with M.L. in his bed for the rest of the night without any further incident. That night was followed by a day of activity with M.L., T. O’C. and her half-sister C.. The following night T. O’C. again slept in M.L.’s bed with him without incident. The next day when T. O’C., at the urging of a friend, reported the sexual assault to her mother, the police were called.

[27] M.L. was subsequently interviewed by the police and charged. Since those charges he has been prohibited from contacting T. O’C.. Furthermore, he was mandated to live with his sister and has continued to do so.

THE VICTIM

[28] I wish to now speak of the victim of the offence and the impact it had on her. T. O’C. was 15 years old at the time of the offence and had been treated as a daughter by M.L. nearly all of her life. That is how she saw him, not ever having had a relationship with her own biological father.

[29] T. O’C. filed a victim impact statement in which she outlines the negative impact and the pain which M.L.’s criminal act has caused her. She writes that since the event, her anxiety has increased. She continues to experience flashbacks of that night and experience shame and blame and does not trust other individuals. She continues to feel a lot of anger and sadness. Most importantly, she writes that her relationship with her half-sister, as well as the relationship between her mother and her sister, are destroyed and she misses her half-sister. She continues to hope that her half-sister will reach out to her. The psychological damage to T. O’C. caused by the offence is real, palpable and ongoing. T. O’C. acknowledges that she could benefit from counselling and intends to go but has not yet pursued this help.

THE OFFENDER

[30] A pre-sentence report for M.L. was ordered and filed with the Court. M.L. is now a 59 (56 years old at the time of the offence) year-old male who comes before the Court for the first time without a criminal record. There have not been any further criminal charges since his arrest in October of 2013.

[31] While M.L. may have had some difficulties as a child, he enjoys the love and support of his parents and siblings and other extended family. His biological daughter C. also continues to be close and supportive of him. When interviewed by the writer of the pre-sentence report, C. was “adamant” that her father had never been inappropriate towards her or any of her friends. In her own words, “My dad raised me since I was eleven. He is a great father, a great person, I love him so much.”(page 4 of the presentence report).

[32] Letters of character submitted by numerous other family members were equally positive.

[33] M.L. left school at age 16, having struggled in school for numerous years. He was employed in various jobs, until shortly after C. was born. He then completed high school and attended College where he obtained his Registered Nurse Diploma in 1995. Shortly after obtaining his nursing qualifications he was employed at the Ottawa Hospital and continues to work there as a registered nurse.

[34] His employer is currently unaware of his conviction and the writer of the pre-sentence report was asked by him not to contact his employer. Once his conviction is known to his employer, it is more than likely M.L. will lose his job as a nurse.

[35] With respect to substance abuse, M.L. admitted to using marijuana and hashish in the past but had stopped for a long period of time. He also admitted to using marijuana with T. O’C. and her friend about 10 times in the summer of 2013. On the night of the offence he had again consumed marijuana with T. O’C.. From all other sources, alcohol or illicit drugs do not appear to be an ongoing concern.

[36] M.L. admitted to touching T. O’C.’s breasts and did not deny that he was “the idiot here”. However, he continues to accept very limited responsibility for his actions, reaffirming, clearly what the jury did not accept, that he woke up with his hand on T. O’C.’s breast. Genuine remorse continues to be an issue for M.L..

[37] The conviction on this charge has clearly had a deleterious effect on M.L.. He alleges that he has suffered from depression since being charged but has not pursued any counselling or medication for his depression.

[38] M.L. completed a sexual behaviour assessment at the Royal Ottawa Hospital in 2014 for court purposes. He has agreed to share this assessment with the court. M.L. informed the writer of the pre-sentence report that he was willing to follow through with any recommendation made within this assessment.

GENERAL PRINCIPLES OF SENTENCING

[39] The next stage of the analysis is to consider what would constitute a proportionate sentence for this offender and the circumstances of this offence as just described, having regard to the objectives and principles of sentencing found in the Criminal Code and the case law. This includes the multi purposes of sentencing enunciated in s. 718 of the Code and the principle of proportionality in s. 718.1 of the Code.

[40] It also includes, pursuant to S. 718.01, giving primary consideration to the objectives of denunciation and deterrence because M.L.’s offence against T. O’C. involved his abuse of a person under the age of 18.

[41] Conviction on the offence of sexual interference pursuant to s. 151 is a serious matter and possesses a high degree of blameworthiness, and necessarily includes the finding that the offender has willfully and knowingly engaged in sexual conduct or touching with a child.

[42] For this reason a sentence involving a period of incarceration appears inevitable in the circumstances of this case. That is the case even though the Court must also consider the principle stated in s. 718.2(d), namely that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. A conditional sentence is not available because conviction of the offence carries a mandatory minimum sentence.

[43] Finally, it also includes a consideration of any relevant aggravating or mitigating circumstances relating to the offence or the offender. Pursuant to s. 718.2 there are 3 incontrovertible statutory aggravating factors found in the circumstances of the offence and the offender. These are, firstly, the age of the victim, T. O’C. was at the time of the offence a person under 18 years. One can also observe here that there is a substantial difference in the ages of the victim and the offender.

[44] Secondly, is the fact that M.L. was effectively in a position of trust and abused the trust in the relationship he enjoyed with T. O’C. in committing the offence. More particularly, on the evening when the sexual acts took place, M.L. was supposedly assisting T. O’C. to calm down by giving her a massage while she was having a moment of anxiety during their conversation. Clearly she trusted him to do that, as he had done in the past, and did not expect him to sexually abuse her.

[45] Thirdly, is the fact that the offence has had and continues to have a significant impact on T. O’C. as evidenced in the victim impact statement she presented to the Court.

[46] Other aggravating factors to note, as revealed in the evidence, are the removal of part of their clothing and that the touching occurred directly on T. O’C.’s bare breasts. The use of marijuana during the events of the evening which M.L. shared with T. O’C. who was a minor is also aggravating.

[47] The mitigating factors of this case must also be considered. The sexual touching in this case, apart from the inherent violence of a sexual assault, did not include any outward violence or physical injury to the victim. There was only one incident and M.L. immediately stopped the sexual touching when the victim said stop. I will add here that I was not persuaded by the evidence presented at trial that M.L. had been grooming T. O’C. to bring her to this moment of the sexual assault. In my view it was an offence of opportunity, grant it an opportunity that M.L. should never have allowed to happen.

[48] Also mitigating is the fact that M.L. has no criminal record and has complied with all of the legal conditions imposed on him since the charges and his conviction.

[49] To date M.L. has been steadily employed although, going into the future, it is likely that he will not be able to be employed in his chosen career of nursing.

[50] He has raised his daughter and enjoys her continuing love and support, as well as that of his immediate and extended family.

[51] The abuses of alcohol or drugs do not appear to be an ongoing concern.

[52] For the reasons already given, genuine remorse for the offence continues to be an issue. While this is not to be considered an aggravating factor. It may, however, be considered in the context of whether M.L. has a genuine understanding of the impact of his conduct on T. O’C. and whether he accepts the appropriate responsibility for his actions. M.L. did not plead guilty to the offences, as was his right. He does not, however, obtain the benefit of the mitigating factor of a plea of guilty and the remorse that would have represented.

[53] Finally, pursuant to s. 718.2 of the Code, a sentence to be proportionate ought to be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. With respect to this principle, in conjunction with all of the other sentencing principles just mentioned, the Court can examine the ranges of sentences imposed in the case law. This would be with a view to determining what is a proportionate rough range of sentencing or a fit sentence, in the circumstances of this case.

[54] Once the Court determines the proportionate and fit sentence that ought to be imposed on M.L. for the offence, it can then be compared to the mandatory minimum sentence of 1 year incarceration so as to decide whether, firstly, it would be unnecessary for the court to address the constitutional issue. A fit sentence of one year or more incarceration would fall into this category.

[55] If the Court determines that the fit sentence to be imposed justifies examining the constitutional issue then in comparing the fit sentence to the mandatory one year minimum, the Court must determine if the mandatory sentence amounts to a sentence that is “grossly disproportionate.”

[56] The constitutional challenge may be raised, not only with respect to the particular offender before the Court but also, failing that, with respect hypothetical offenders whose circumstances are reasonably foreseeable, including reported cases.

[57] In the exercise of this analysis, I am also cognisant of the fact that the Supreme Court in R. v. Nur, supra indicated that the test for the infringement of s. 12 of the Charter is to be applied at a high level. In the case of R. v. McDonald, [1998] O. J. No. 2990, a case dealing with the possession of a firearm and pre-trial custody, the Ontario Court of Appeal concluded that even a sentence that may be demonstrably unfit is “not the same thing as grossly disproportionate”, if having regard to the objective gravity of any offence it cannot be said to shock the conscience.

[58] The Supreme Court formulated this stringent test found in R. v. Nur, supra, previously in the case of R. v. Morrisey 2000 SCC 39 at para. 26:

[59] Section 12 of the Charter provides a broad protection to Canadians against punishment which is so excessive as to outrage our society’s sense of decency: Smith, supra, at p. 1072; Goltz, supra, at p. 499; R. v. Luxton, [1990] 2 S.C. R. 711, at p. 724. The Court’s inquiry is focussed not only on the purpose of the punishment, but also on its effect on the individual offender. Where a punishment is merely disproportionate, no remedy can be found under s. 12. Rather, the Court must be satisfied that the punishment imposed is grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable. As I said in Golz, at p. 501, “the test is not one which is quickly to invalidate sentences crafted by legislators.”

[60] R. v. Morrisey, supra was a case involving the issue of criminal negligence causing death with a firearm and pre-trial custody.

EXAMINATION OF THE SENTENCING CASE LAW

[61] Both Counsel have provided a plethora of cases, with varying circumstances, none of which are completely identical to the circumstances of this case. I also note that after examining the multitude of case law relating to sexual offences against children, there is no question that sentences for these offences have generally been increasing over time. There is no doubt that Society is more aware of the negative impact of such abuse on children.

[62] Clearly no two cases will be the same. Because of the similarity principle mentioned earlier, I have focused my examination of the case law on the more recent jurisprudence and on those cases dealing with sexual assaults of persons under 18 years where the facts presented similar acts of sexual touching and the frequency of acts of sexual touching as found in the circumstances of this case. I also tried to deal with case law whose subject was conviction for sexual interference. There were one or two cases where the offence was sexual assault or sexual exploitation. Cases dealing with the offence of sexual interference, where they existed, seemed to offer the best guidance to determining what might be a proportionate sentence in this case. For the same reason I have not considered those cases where the sexual acts involved included more intrusive sexual activity and more egregious violence and threats of violence or death nor where the sexual acts were perpetrated over long periods of time, none of which can be found in the circumstances of this case. Cases where conditional sentences were imposed did also not provide much guidance as such a sentence would not be fit in the circumstances of this case. I also considered those cases where a guilty plea was entered even though, notably there clearly was none in this case.

CROWN’S CASES

[63] In support of her position the Crown relies on the following cases.

[64] R. v. Suarak (Tab 10), was a decision of Ontario Court of Justice Dorval, finding the aboriginal offender guilty of sexual interference. In that case the victim was 6 years old, much younger than the victim in the case before me. The touching consisted of touching the child’s genitalia over her swimming trunks for a short duration. The sexual touching was unnoticed by the victim but had a significant impact on the child’s mother. Breach of trust did not appear to be a factor in this case. The offender was an aboriginal with a problematic past and anti-social personality. The Gladue principle had to be considered. The risk of reoffending was moderate to high. Justice Dorval found the appropriate sentence to be 15 months incarceration.

[65] R. v. E. M. Q., (Tab 11) decision of Justice Pearlman of the Supreme Court of British Columbia involving a conviction on sexual interference. The accused was an aboriginal offender with a problematic past. The Gladue principle was considered. The offender was drinking on the night of the assault and in breach of his probation conditions. The offender had a criminal record in this case, which is not so on the facts of this case. He assaulted the complainant who was a 14 year old baby sitter. The babysitter was awakened by the accused who asked her for a kiss. When she refused the accused wrestled her and attempted to touch her breasts and vagina. There was some physical force exerted on the facts of this case which was not so on the facts before me. He succeeded in touching her in the pelvic area above her vagina over her clothing. There was a significant impact on the victim. Mr. Justice Pearlman concluded that an appropriate sentence was 13 months of incarceration. Mr. Justice Pearlman came to that decision after a comprehensive examination of the case law with similar facts presented to him, which case law I have also considered.

[66] R. v. C. M. (Tab 13) is an appeal from a sentence of one year imprisonment imposed by the trial judge in 2000. The sexual touching consisted of briefly touching the complainant from behind on her hip or thigh over clothing, a sexual touching that the Court labeled “a minor example of the offence”. The offender was on probation and the Court of Appeal appeared to accept the fact that the offender was in a position of trust to the victim. There is no information about the impact of the acts on the victim. The Court of Appeal reduced the trial judge’s sentence of 1 year incarceration to a 9 and one half months jail term, time served in pre-trial custody, which in the Court of Appeal’s estimation was more proportionate to what actually occurred.

[67] R. v. Calle (Tab 14), on a summary conviction appeal, Superior Court Justice Trotter upheld the trial judge’s decision to impose 12 months incarceration for a conviction of sexual interference. The sexual touching on the facts of that case consisted of touching the vagina, without penetration, and the chest area of the victim under clothes, which was considered to be at the “low end of the invasiveness spectrum”. The touching had been done some 5 times over 2 weeks, which is different from the facts of this case involving one incident. There was a breach of trust and the touching was accompanied with some threats to kill the child’s mother if she told anyone. The acts and threat had a serious impact on the child. The offender was found to lack remorse and to have very little prospect for rehabilitation.

[68] In R. v. C. F. (Tab 11), on summary conviction for sexual interference, the offender argued that the required 90-days mandatory minimum sentence constituted cruel and unusual punishment. The accused was found to be on the autism scale with limited education and family support. He expressed no remorse or insight. There were 2 victims in this case. The sexual acts consisted of sexualised touching wherein the offender mimicked sexual positions and caused one of the victims to touch his penis. There was no information about the impact on the victims. The Charter application was dismissed. Justice Felix of the Ontario Court of Justice, after applying the test in R. v. Nur, supra, concluded that the proportionate range of sentence for the offence and the offender before him was between 60 and 90 days and he would have imposed a sentence at the lower end of the range of 60 days which he did not consider “grossly disproportionate” so as to justify the success of the Charter application. After examining the reasonable hypotheticals presented by counsel, Justice Felix concluded, that “given the characteristics of the particular defendant before the court, it is unlikely that any reasonable hypothetical offender could ground a s. 12 breach” and made reference to the case of R. v. Q. (E. M.), supra.

[69] The mandatory minimum of 90 days incarceration was imposed in this case.

[70] R. v. S. A. (Tab 16) Mr. Justice DeFrate of the Superior Court of Justice, following conviction by a jury of the offence of sexual interference under s. 151 of the Code and at the time of sentencing was faced with a Charter challenge of the mandatory minimum sentence for sexual interference that applied to the two incidents in that case, namely 45 days, prior to the most recent increase in the mandatory minimum sentence under this section to one year. The sexual touching was found by Mr. Justice De Frate to be “a fleeting touch over clothes and not an intimate body part “but that his words said to the victim about pornography and being a good sex teacher raised the otherwise minor contact to one of sexual purpose. The victim was 14 years old and the aboriginal offender was found to be in a position of trust. The impact on the victim was serious and continuing. Mr. Justice De Frate found the facts before him to be similar to those in the case of E.M. Q., supra. The sentencing Justice found the appropriate penalty for the specific offender before him to be 90 days incarceration to be served intermittently which is what he ultimately imposed on the offender. After examining the question of whether the mandatory minimum sentence would be grossly disproportionate in a reasonably foreseeable case, Justice De Frate concluded that 45 days minimum sentence would be appropriate in the hypotheticals examined by him and he could not conclude that the mandatory minimum would shock the conscience of the community. The Charter motion was, therefore, refused.

DEFENCE CASES

[71] In support of his position, defence counsel relies on the following cases both with respect to the specific offender, M.L., and to “reasonable hypotheticals”.

[72] R. v. R.D. (Tab 2) on summary conviction by the Ontario Court judge who imposed a sentence of 4 months on an offender convicted of sexual interference on this daughter, who was 15 years old. The offender was sleeping in bed with his daughter, pulled her shirt and bra down, touched her breasts and placed her hand on his penis. There was breach of trust found and involved 1 or 2 incidents. The offender was also found to be guilty of sexual interference on a friend of his daughter for which he was given 2 months incarceration for a total of 6 months. The sexual acts were found to be not very invasive and he had stopped when told to do so. The mandatory minimums in operation in this case were those put into force in 2005 and not the current ones. The Court found that globally an appropriate sentence was 6 and one half to 7 month’s incarceration.

[73] In R. v. Cordeiro (Tab 3), the offences dated to the late 1990s, the offender was found to have sexually touched the daughter of his partner, who was 7 years old, twice weekly for a period of 6 months. There was a breach of trust and multiple acts. The sexual touching was found to be on the low end of severity. The offender expressed no remorse nor was he open to counselling. A mandatory minimum sentence was not in play in this case. In all of the circumstances of this case, a conditional sentence, although argued, was not considered to be a fit sentence The Ontario Court trial judge imposed a sentence of 6 months.

[74] In the case of R. v. C. L. (Tab 4) on a summary conviction appeal from a sentence of 6 months incarceration imposed by the trial judge, Superior Court Justice Campbell reduced the sentence to 90 days to be served intermittently. The offences occurred in 2010 prior to the current mandatory minimum sentence coming into force. The sexual touching was on a neighbour during two incidents involving trying to put his hands between her legs while riding in a car. During the second incident he touched her breasts and legs and kissed her after leading her to his basement. The offender was a 50 year old man with two teenaged daughters. The sexual acts were found to be on the less serious spectrum over clothing. Breach of trust was found and the substantial differences in age between the victim and the offender was found to be aggravating. There was a serious impact on the 15 year-old victim and substantial mitigating factors.

[75] In R. v. T.M. B. (Tab 6), a matter heard in 2013. The aboriginal offender, on summary conviction, was found guilty of sexual interference on his 5 year old granddaughter by the Ontario Court of Justice. The sexual acts consisted of being naked on the floor and touching his penis to her vagina for approximately 2 minutes. At trial the sentence imposed was 8 months incarceration, which was found by the summary appeal court judge, to be within the appropriate range of sentences of this offence and this offender. However, Justice Code reduced the sentence to 90 days to be served intermittently. A breach of trust was found but the offender was also found to have accepted responsibility for his actions, to have made a commitment to change and the passage of time all constituted a material change of circumstances existed justifying the reduction of the sentence to 90 days intermittent. Conditional sentence was not found to be appropriate sentence and, given the circumstances of the offence required a custodial sentence longer than the 14-day mandatory minimum.

[76] R. v. D. V. (Tab 7) was a 2010 appeal from a summary conviction for sexual interference where the trial judge imposed a 90 day intermittent sentence. The victim was 15 years old and the sexual acts were more invasive than those in this case. There was touching of the vagina and breasts of the victim and the use of her hands to cause ejaculation. The Court found that the physical intrusion was “egregious” and was perpetrated in the face of the resistance of the victim. A breach of trust was found and the impact on the victim was significant. Unlike the facts in this case there was a plea of guilty. The sentence of 90 days intermittent was found to be unfit and an error in principle by not giving inadequate weight to the principles of general deterrence and denunciation and by giving too much weight to the possibility of the loss of the offender’s employment. The appropriate range of sentencing was found to be 6 months incarceration. However, it was not found appropriate to re-incarcerate the accused after he had already completely purged the sentence imposed at trial.

[77] In R. v. E.R.D. R. (Tab 10), Justice Beames of the Supreme Court of British Columbia sentenced an offender after a plea of guilty to s. 271 of the Code, to sexually assaulting his brother’s step daughter in 2013 who was 6 years old and while he was babysitting her. The offender was diagnosed to be on the autism spectrum disorder. There was no criminal record and one incident. Breach of trust was found and there was a significant impact on the victim. Defence challenged under the Charter the minimum mandatory one year sentence for the sexual assault. The trial judge found that the appropriate range of sentence with respect the specific offender was 9 to 18 months and so the mandatory minimum 1 year sentence could not be found to be grossly disproportionate. After examining reasonable hypothetical presented by Defence Counsel, however, the Court found that it would be grossly disproportionate for others who might be caught by the section. The trial judge therefore declared the section to be unconstitutional and allowed the Crown to make submissions on the saving provision in s. I of the Charter.

[78] Finally, at the request of Crown Counsel after the oral submissions on this motion and consented to by Defence counsel, I have also examined the decision of Justice Johnston of the Superior Court of Justice in R. v. Rancourt, delivered orally on October 13, 2016. The facts of that case were, briefly, a conviction on two counts, one being sexual assault under s. 271 and the other being sexual exploitation under s. 153. The offender was the high school teacher, mentor and coach of the victim and hence in a position of trust and authority. The sexual abuse went on while she was a minor for the 5 years that she was in high school and for innumerable incidents that were impossible to quantify. It was found that the offender had manipulated and groomed the victim for his sexual gratification. The sexual conduct was described as “at the lower end of a range of assaultive behaviour often seen by this Court”. I note here that having read the details of the conduct in the case before Mr. Justice Johnston, I find it and the circumstances of that case to be more egregious than the conduct and circumstances in this case. There was a lasting impact on the victim. The offender was found to have no remorse or insight into the harm he had caused and specific deterrence was found to be a heavy consideration with a significant possibility of recidivism.

SECTION 12 CONSTITUTIONAL CHALLENGE

[79] The substantial differences in the sentences imposed in all of these cases renders the task of identifying a definitive rough range of sentence for offences similar to the case before me difficult. Allowing for the many differences in the facts of those cases I must ultimately focus my determination on the particular circumstances of this case as I have already outlined them earlier. In that respect I found the list of factors for consideration in sentencing for sexual offences mentioned by Mr. Justice Pearlman at paragraph 84 of his decision, R. v. E.M.Q., supra helpful:

(a) The nature and intrinsic gravity of the offences which is affected by, in particular, the use of threats, violence, psychological and manipulation, etc.

(b) The frequency of the offences and the time period over which they were committed.

(c) The abuse and trust and the abuse of authority which are involved in the relationship between the offender and the victim.

(d) The disorders underlying the commission of the offences; the offender’s psychological difficulties, disorders and deviancy, intoxication, etc.

(e) The offender’s previous convictions: proximity in time to the offence charged and the nature of the previous offences.

(f) The offender’s behaviour after the commission of the offences; confessions, collaboration in the investigation, immediate involvement in a treatment programme, potential for rehabilitation, financial assistance if necessary, compassion and empathy for the victims (remorse, regret, etc.).

(g) The time between the commission of the offences and the guilty verdict as a mitigating factor depending upon the offender’s behaviour (the offender’s age, social integration and employment, commission of other offences etc.).

(h) The victim: gravity of the attack on his or her physical or psychological integrity reflected by, in particular, age, the nature and extent of the assault, the frequency and duration of the assault, the character of the victim, his or her vulnerability(mental or physical handicap), abuse of trust or authority, lingering effects, etc.

[80] After considering all of these factors with reference to the case at bar, I conclude that but for the mandatory minimum sentence of 1 year incarceration for conviction of sexual interference under s. 151 of the Code, under the circumstances of the case before the court, the rough range of sentencing is between 6 and 15 months incarceration.

[81] With respect to what would be a fit and proportionate sentence for M.L., there are clearly notable aggravating factors in the circumstances of the case before me which I have already mentioned. M.L. is therefore not the best of offenders. However, based on the mitigating factors already identified by me, nor is he the worst of offenders. As a result, I come to the conclusion that taking account of, the primary sentencing principles of general deterrence and denunciation; the circumstances of the offender and his moral responsibility for his actions and that remorse continues to be an issue; the nature of the sexual interference, being at the lower end of the spectrum of sexual intrusiveness and seriousness; and the age of the victim, vis a vis his own age and the serious impact the offence has had on her and the relations with her extended family, a nine month custodial term would, in my view, be proportionate to the offence M.L. committed.

[82] A period of nine months incarceration is clearly less than the mandatory minimum sentence of one year, rendering the mandatory minimum sentence of one year a disproportionate sentence. Nonetheless, I am not persuaded that this difference, a matter of 3 months, meets the high threshold of “grossly disproportionate”. Given the nature and all of the circumstances of the offence, it cannot be considered “so excessive as to outrage standards of decency”, be “abhorrent or intolerable”. (See R. v. Smith, [1987] 1 S. C. R. 1045 and R. v. Ferguson, 2008 SCC 6. Neither of these cases dealt with the offence of sexual interference.)

[83] Having decided that the mandatory minimum sentence provided for by s. 151 of the Code would not impose a grossly disproportionate sentence on the specific offender, I am then directed by the Supreme Court in R. v. Nur, supra to examine whether the mandatory minimum sentence may be successfully challenged on the ground that it would impose a grossly disproportionate sentence on other persons in reasonably foreseeable situations, including reported cases.

[84] Crown counsel submits that the reasonable hypothetical cases identified by the Defence in this case to support its application should not be considered because they do not reflect the current range of sentencing as considered appropriate by the Ontario Court of Appeal; because they do not reflect the growing awareness of the long-ranging effects on the victims; and because they are devoid of any contextual setting.

[85] I cannot agree, all of the reasonable hypotheticals relied on by Defence counsel are reported cases. The reported cases provide a context for the basis of the sentence imposed. Furthermore, most of these reported cases, in a comprehensive way, discuss the applicable sentencing principles to be applied, acknowledgment of the impact of the sexual conduct on the victim and the particular circumstances of the offender. In considering these cases for the purpose of this part of the s. 12 constitutional analysis, I have excluded those that are not similar to the circumstances of this case, such as those where the intrusiveness of the sexual acts were on the higher end of the spectrum and a plea of guilty was entered. Furthermore, also acknowledging that sentences imposed for sexual offences against children have been increasing over time, I have also focused on the more recent cases, some of which dated to after the mandatory minimum sentence came into force. It is evident from the examination of the reasonable hypothetical cases examined where sentences of 60 to 90 days were found to be fit sentences for conviction on sexual interference in relatively similar circumstances to this case would be caught by the one year mandatory minimum sentences and would be indisputably grossly disproportionate. As a result, I must find that s. 151 (a) of the Code violates s. 12 of the Charter.

SECTION 1 CHARTER CONSIDERATIONS

[86] Crown counsel has rightly stated that the last stage of this analysis is to determine whether the identified infringement is justified under s. 1 of the Charter. Crown counsel argued orally and in her factum that it is and the Crown bears the burden of proving that. Applying the R. v. Oakes, [1986] 1 S.C. R. 103 test, Crown counsel argues that the goal must be pressing and substantial and the means chosen must be proportional to the objective of the law.

[87] In the case of sexual abuse of children no one can dispute that Parliament’s objective is to protect children, society’s most vulnerable members, from such abuse by applying the primary principles of deterrence, denunciation and separation of the offender from society in these types of cases. Parliament seeks to achieve its objective by the imposition of the mandatory minimum sentence. As stated in para. 111 of R. v. Nur, supra:

“A law is proportionate if (1) the means adopted are rationally connected to the objective; (2) it is minimally impairing of the right in question; and (3) there is proportionality between the deleterious and salutary effects of the law; R. v. Oakes, [1986] 1 S. C. R. 103. It will be difficult to show that a mandatory minimum sentence that has been found to be grossly disproportionate under s. 12 is proportionate as between the deleterious and salutary effects of the law under s. 1.”

[88] At paragraphs 112 to 118 of R. v. Nur, supra, grant it in the context of gun-related crimes s. 95 of the Code, the Supreme Court questions the rational connection between mandatory minimum sentences for imprisonment found to violate S. 12 of the Charter. It found that “despite the frailty of the connection between deterrence and mandatory minimum sentence provisions” the Court recognised that “a rational connection exists between mandatory minimum terms of imprisonment and the goals of denunciation and retribution.” (para. 115).

[89] When the Supreme Court went on to examine the question of “minimal impairment” it found that the government did not “discharge its burden on this branch of the Oakes test” because there were less harmful means of achieving the legislative goal.

[90] Finally, when the Supreme Court considered the proportionality aspect of the Oakes test, namely weighing the impact of the law on protected rights against the beneficial effect of the law in terms of the greater public good, it found that the mandatory minimum terms of imprisonment in the section in question when the Crown proceeds by indictment are grossly disproportionate.

[91] With respect to the facts of this case and the s. 151 mandatory minimum sentence of incarceration I was not persuaded by any evidence or argument presented that the application of the Oakes test to this case would not lead to the same conclusion as that reached by the Supreme Court in R. v. Nur, supra. I do not find that the limits are a proportionate justification under s. 1 of the Charter.

[92] For these reasons the Defence application is granted. The mandatory minimum sentences imposed by s. 151 of the Code are declared of no force or effect under s. 52 of the Constitution Act.

M. Linhares de Sousa J.

Released: 2016/11/15

CITATION: R v ML, 2016 ONSC 7082

COURT FILE NO.: 13-SA5089

DATE: 2016/11/15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Suzanne Schriek, for the Respondent

– and –

M.L.

Mark Ertel, for the Applicant

REASONS FOR JUDGMENT

M. Linhares de Sousa J.

Released: 2016/11/15