R. v. Drumonde, 2019 ONSC 1005

COURT FILE NO.: CR-18-0000032-00AP

DATE: 20190211

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

KAYLA DRUMONDE

Respondent

C. Sweeny, for the Appellant

A. Ross, for the Respondent

HEARD: January 18, 2019.

REASONS FOR JUDGMENT

On appeal from the sentence imposed by the Honourable Justice L. Pringle of the Ontario Court of Justice on April 25, 2018.

SCHRECK J.:

1The issue in this appeal is whether the 90-day mandatory minimum sentence of imprisonment for sexual interference where the Crown proceeds summarily infringes the guarantee against cruel and unusual punishment in s. 12 of the Canadian Charter of Rights and Freedoms.

2When Kayla Drumonde was 21 years old, she and her 31-year-old fiancé, Kevin Chan, befriended I.N., a 14-year-old girl whom Mr. Chan had tutored. I.N. was experiencing problems at home and had begun to confide in Mr. Chan and Ms. Drumonde. The three of them developed a very close and inappropriate relationship and began to communicate or see each other every day. During the relationship, Mr. Chan and Ms. Drumonde kissed I.N. on the cheeks and forehead, hugged her, and held her hands. As a result, they were charged with sexual assault and sexual interference.

3The Crown elected to proceed summarily and Mr. Chan and Ms. Drumonde were tried in the Ontario Court of Justice. The trial judge accepted that Mr. Chan and Ms. Drumonde genuinely cared for I.N. However, she was satisfied that there was a “sexual aspect” to some of the kissing on the cheeks and forehead and on that basis, found them guilty. The sexual assault charges were stayed pursuant to the rule against multiple convictions.

4Section 151(b) of the Criminal Code provides that a conviction for sexual interference carries a mandatory minimum sentence (“MMS”) of imprisonment for 90 days where the Crown proceeds summarily. At her sentencing hearing, Ms. Drumonde challenged the constitutionality of the MMS and submitted that it violated s. 12 of the Charter. The trial judge agreed and sentenced Ms. Drumonde to a 45-day conditional sentence followed by a term of probation: R. v. Drumonde, 2018 ONCJ 336.

5The Crown appeals the sentence. Crown counsel submits that the trial judge erred in concluding that the MMS violated s. 12 and that the violation was not justified under s. 1 of the Charter.¹

6For the reasons that follow, the appeal is dismissed. I agree with the trial judge that the MMS violates s. 12 of the Charter and that the violation cannot be saved by s. 1.

I. FACTS

A. The Offence

7In the spring of 2014, the complainant, I.N., who was 14 years old, was enrolled in a private math school. At the time, she was experiencing conflict with her parents and began to confide in her math tutor, Kevin Chan, who was 31 years old at the time. Through him, she met the respondent, who was Mr. Chan’s fiancée and 21 years old.

8The relationship between I.N., Mr. Chan and the respondent became very close. Between June and August, the three of them saw each other or communicated with each other every day. Mr. Chan and the respondent gave I.N. a key to their apartment and she went there frequently. At one point, Mr. Chan and the respondent contacted the Children’s Aid Society (“CAS”) at I.N.’s request to report that her mother had pushed her and emotionally abused her. I.N. stayed at Mr. Chan and the respondent’s apartment while the CAS inquired into the matter.

9During the relationship, Mr. Chan and the respondent kissed I.N. on the cheeks and forehead and would sometimes hug her or hold her hand. This was the extent of the physical contact that the trial judge found had taken place.

10The relationship between the respondent and I.N. became increasingly intense. When I.N. went away to camp, the respondent wrote letters to her, including one in which she stated “when I kiss you I feel like a girlfriend.” When the CAS workers became aware of some of these letters, they told the respondent to stop having contact with I.N. The respondent agreed, but within a week resumed contact.

B. The Trial Judge’s Findings

11The trial judge expressly rejected the Crown’s theory that Mr. Chan and the respondent had been “grooming” I.N. or that they were motivated by sexual gratification. However, she concluded that the relationship was inappropriate and that there was a “sexual aspect” to some of the kissing (at para. 6):

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

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

12Based on these findings, Mr. Chan and the respondent were both found guilty of sexual assault and sexual interference. The sexual assault counts were stayed pursuant to the rule against multiple convictions. Mr. Chan did not challenge the MMS and received a 90-day prison sentence.

C. Victim Impact

13Both I.N. and her mother prepared victim impact statements. I.N. reported that she suffered significant stress and anxiety as a result of the offences and had to receive counselling. She missed a lot of school and her grades and academic performance suffered. She believed that she would no longer be able to pursue her chosen career as a biologist or physicist. Her mother also experienced stress and anxiety, requiring counselling.

D. The Respondent

14The respondent was 25 years old at the time of sentencing and no longer in a relationship with Mr. Chan. She had experienced a number of health problems at a young age, including kidney surgery, a brain tumour and skin cancer. By the age of 10, she began suffering from depression and anxiety and spent three months as a voluntary inpatient at a psychiatric institution because of threats of suicide and harming behaviour.

15When the respondent was 13, she was sexually assaulted by somebody she had met online. She met Mr. Chan online the same year, but claimed that she and he “agreed to be friends” until she was 16. When she turned 16, she and Mr. Chan, who was 10 years older than her, began to live together.

16After being found guilty of these offences, the respondent saw a psychologist who reported that she had gained insight into her behaviour and had come to understand why her relationship with I.N. was inappropriate as well as why she did not realize this at the time. She was reported to be at a low risk to re-offend sexually or generally. However, she continued to suffer from depression and anxiety and was at a moderate risk for self-destructive behaviour.

II. ANALYSIS

A. The Impugned Section

17Section 151 of the Criminal Code provides as follows:

151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.

18Before 2005, the offence had no MMS. In 2005, Parliament introduced a MMS of 14 days when the Crown proceeded summarily and 45 days when the Crown proceeded by indictment. In 2012, as part of the Safe Streets and Communities Act, S.C. 2012, c. 1, s. 11, the MMS was increased to 90 days when the Crown proceeded summarily and one year when it proceeded by indictment.

B. Section 12 of the Charter – The Analytical Framework

(i) Gross Disproportionality

19Section 12 of the Charter provides:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

20The analytical framework to be applied in determining whether a MMS violates s. 12 is well established and was explained by the Supreme Court of Canada in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 and more recently by McLachlin C.J.C. in R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at paras. 22-24:

The analytical framework to determine whether a sentence constitutes a “cruel and unusual” punishment under s. 12 of the Charter was recently clarified by this Court in Nur. 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 64 (SCC), [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.

A challenge to a mandatory minimum sentencing provision under s. 12 of the Charter involves two steps: Nur, at para. 46. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. The court need not fix the sentence or sentencing range at a specific point, particularly for a reasonable hypothetical case framed at a high level of generality. But the court should consider, even implicitly, the rough scale of the appropriate sentence. 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: Smith, at p. 1073; R. v. Goltz, 1991 51 (SCC), [1991] 3 S.C.R. 485, at p. 498; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at paras. 26-29; R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, at pp. 337-38. In the past, this Court has referred to proportionality as the relationship between the sentence to be imposed and the sentence that is fit and proportionate: see e.g. Nur, at para. 46; Smith, at pp. 1072-73. The question, put simply, is this: In view of the fit and proportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances? If so, the provision violates s. 12.

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, 1976 12 (SCC), [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.

The applicability of this analytical framework was recently affirmed in R. v. Boudreault, 2018 SCC 58, at paras. 45-46.

(ii) Reasonably Foreseeable Hypotheticals

21In many cases, including the case at bar, the success or failure of a s. 12 challenge will depend not on the facts of the case, but on whether there exists a reasonably foreseeable hypothetical situation in which the minimum sentence would be grossly disproportionate. The limits of this exercise were explained in Nur, at para. 68:

The reasonable foreseeability test is not confined to situations that are likely to arise in the general day-to-day application of the law. Rather, it asks what situations may reasonably arise. It targets circumstances that are foreseeably captured by the minimum conduct caught by the offence. Only situations that are “remote” or “far-fetched” are excluded: Goltz, at p. 515. Contrary to what the Attorney General of Ontario suggests there is a difference between what is foreseeable although “unlikely to arise” and what is “remote [and] far-fetched”: A.F. (Nur), at para. 66. Moreover, adoption of the likelihood standard would constitute a new and radically narrower approach to constitutional review of legislation than that consistently adhered to since Big M. [R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295]. The Court has never asked itself whether a projected application of an impugned law is common or “likely” in deciding whether a law violates a provision of the Charter. To set the threshold for constitutional review at common or likely instances would be to allow bad laws to stay on the books.

22It is now clear that in considering such hypothetical situations, courts may consider the personal characteristics of the hypothetical offender, provided that the example is not “remote or far-fetched”, and may rely on actual reported cases: Nur, at paras. 72-76.

(iii) Section 12 Challenges to MMS Provisions Since Nur and Lloyd

23Since Nur and Lloyd were decided, provincial appellate courts have found several MMS provisions in the Criminal Code and the Controlled Drugs and Substances Act (“CDSA”) to violate s. 12 of the Charter: R. v. John, 2018 ONCA 702, 142 O.R. (3d) 670 (one-year MMS for possession of child pornography in s. 163.1(4)(a)); R. v. Vu, 2018 ONCA 436, 140 O.R. (3d) 641 (six-month to two-year MMS for production of marijuana in s. 7(2)(b) of the CDSA); R. v. Morrison, 2017 ONCA 582, 136 O.R. (3d) 545 (one-year MMS for internet luring in s. 172.1(2)(a)) (on appeal to the S.C.C., judgment reserved); R. v. Scofield, 2019 BCCA 3 (one-year MMS for sexual interference in s. 151(a)); R. v. Swaby, 2018 BCCA 416 (90-day MMS for possession of child pornography in s. 163.1(4)(b)); R. v. J.E.D., 2018 MBCA 123 (s. 151(a)); R. v. Hood, 2018 NSCA 18, 409 C.R.R. (2d) 70 (one-year MMS for sexual exploitation, sexual interference and internet luring in ss. 153(1.1), 151(a) and s.172.1(2)(a) and (b)²); Caron Barrette c. R., 2018 QCCA 516, 46 C.R. (7th) 400 (s. 151(a)); R. v. McGee, 2017 BCCA 457 (two and three-year MMS for production of marijuana in s. 7(2)(b)(v) and (vi) of the CDSA); R. v. Serov, 2017 BCCA 456, 358 C.C.C. (3d) 203 (one-year and 18-month MMS for production of marijuana in s. 7(2)(b)(iii) and (iv) of the CDSA); R. v. J.L.M., 2017 BCCA 258, 353 C.C.C. (3d) 40 (six-month MMS for communicating with a person under the age of 18 for obtaining sexual services in s. 212(4)³); R. v. Elliott, 2017 BCCA 214, 349 C.C.C. (3d) 1 (six-month MMS for production of marijuana in s. 7(2)(b)(i) of the CDSA); R. v. Dickey, 2016 BCCA 177, 335 C.C.C. (3d) 478 (two-year MMS for trafficking controlled substances in certain circumstances in s. 5(3)(a)(ii)(A) and (C) of the CDSA).

24MMS provisions were upheld in R. v. Forcillo, 2018 ONCA 402, 141 O.R. (3d) 752 (four and five-year MMS for attempted murder with a firearm in s. 239(a)(i) and (a.1)); R. v. McIvor, 2018 MBCA 29, 407 C.R.R. (2d) 255 (five-year MMS for robbery with a restricted or prohibited firearm in s. 344(1)(a)(i)); R. v. Bernarde, 2018 NWTCA 7 (four-year MMS for robbery with a firearm in s. 344(1)(a.1)); R. v. Al-Isawi, 2017 BCCA 163, 348 C.C.C. (3d) 524 (one-year consecutive MMS for committing an indictable offence with a firearm where the underlying offence is robbery in s. 85(3)(a) and 85(4)); R. v. Oud, 2016 BCCA 332, 339 C.C.C. (3d) 379 (four-year MMS for reckless discharge of a firearm in s. 244.2(3)(b)) and R. v. E.J.B., 2018 ABCA 239, 72 Alta. L.R. (6th) 29 (one-year MMS for sexual exploitation in s. 153(1)(a)). All of these cases involved offences where the use of a firearm was an essential element except for E.J.B., where the Alberta Court of Appeal upheld the one-year MMS for sexual exploitation, contrary to the conclusion reached by the Nova Scotia Court of Appeal in Hood.

C. The Trial Judge’s Reasons

(i) The Appropriate Sentence Absent the MMS

25As required by Nur and Lloyd, the trial judge began her analysis by considering the appropriate sentence for the respondent absent the mandatory minimum sentence. After considering the aggravating and mitigating factors as well as the sentences imposed in other cases, she concluded as follows (at paras. 52-55):

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

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

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

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

(ii) Proportionality of the MMS for the Respondent

26Next, the trial judge considered whether the MMS would be grossly disproportionate for the respondent. She concluded that because she would impose a 45-day sentence absent the MMS, it could not be said that a 90-day sentence would be grossly disproportionate (at para. 56). Counsel for the respondent does not take issue with this conclusion on appeal.

(iii) Foreseeable Hypotheticals

27The trial judge then considered possible hypotheticals, beginning with one based on a case she had presided over (at paras. 58-62):

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

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

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

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

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

28In considering the existence of reasonable hypotheticals, the trial judge noted that the personal characteristics of the accused were relevant and that two in particular, Aboriginal status and mental health factors, could reasonably contribute to a finding of gross disproportionality and had done so in a number of previous cases (at paras. 63-68).

(iv) Section 1 of the Charter

29With respect to s. 1 of the Charter, the trial judge concluded as follows (at paras. 82-83):

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

Moreover, the Crown cannot show that a grossly disproportionate sentence of 90 days is “proportionate” between the deleterious and salutary effects of the law.

30Having concluded that the MMS did not apply, the trial judge imposed a 45-day conditional sentence followed by three years of probation as well as mandatory ancillary orders.

D. Grounds of Appeal

(i) Overview

31The appellant submits that the trial judge erred by:

(1) finding a s. 12 Charter violation in the absence of any evidence called by the respondent to prove that the MMS in s. 151(b) constitutes cruel or unusual punishment;

(2) concluding that the hypotheticals on which she relied were reasonably foreseeable;

(3) concluding that the MMS would be grossly disproportionate in the hypothetical situations she considered.

I will consider each in turn.

(ii) The Absence of Evidence

(a) The Appellant’s Argument

32The appellant submits that the trial judge erred by finding a s. 12 violation in the absence of any evidence. As I understand the argument, because the MMS will only violate s. 12 if it is “so excessive as to outrage standards of decency” and “abhorrent or intolerable to society” (Lloyd, at para. 24), it was incumbent on the respondent to lead evidence that members of society held such views in this case. The appellant submits that this is not a matter about which judicial notice can be taken and that “judges cannot reach out directly to the public to poll them on their views regarding MMS for sexual interference” (Appellant’s Factum, para. 21). As a result, the respondent was required to lead evidence of this in order to succeed on a s. 12 challenge. The evidence could have been in the form of “statistics, academic journals, news reports or other legal articles” (Appellant’s Factum, para. 20).

33The appellant further submits that not only did the respondent fail to lead evidence that members of society would not tolerate the MMS in this case, the Crown led evidence to the contrary in the form of excerpts from Hansard at the time the Safe Streets and Communities Act was passed. These excerpts showed that Members of Parliament from both the government and the opposition supported the bill. The appellant submits that because these Members of Parliament were speaking on behalf of the people who elected them, it should be inferred that the public supports the MMS.

34There are several reasons why I do not accept this submission. First, the type of evidence the appellant submits was necessary was not called in Nur, Lloyd or any of the other cases cited earlier in which a MMS was struck down as being inconsistent with s. 12, nor was there any such evidence in Boudreault.

35Second, the fact that Members of Parliament supported the legislative provision in question is hardly surprising. It would not have been enacted without such support. Similar supportive comments from Hansard can undoubtedly be found with respect to every legislative provision that is later struck down as unconstitutional.

36Finally, the Safe Streets and Communities Act did not only create the 90-day MMS in this case. It also created a one-year MMS in indictable cases for the offences of sexual interference, invitation to sexual touching, sexual exploitation, making child pornography, possession of child pornography, and accessing child pornography. The all-party support for the legislation which the appellant relies on applied to the MMS in relation to all of these offences. Notwithstanding this support, a number of them have been found to violate s. 12 of the Charter: John; Hood; Scofield; J.E.D.; Swaby; R. v. M.L., 2016 ONSC 7082, 367 C.R.R. (2d) 268; R. v. Sarmales, 2017 ONSC 1869, 378 C.R.R. (2d) 282; R. v. Hussein, 2017 ONSC 4202; R. v. Ali, 2017 ONSC 4531, 387 C.R.R. (2d) 209; R. v. H.L., 2018 ONSC 1026; R. v. S.J.P., 2016 NSPC 50, 377 N.S.R. (2d) 32.

(b) The Correct Analysis

37With respect, the appellant misunderstands the dicta from Lloyd on which it relies. The appellant is correct that a s. 12 violation will only be found where the sentence in question will “outrage standards of decency” and be “abhorrent or intolerable to society.” However, this does not mean that the s. 12 analysis is reduced to a public opinion poll, or that the court must somehow learn what the public thinks a proportionate or grossly disproportionate sentence would be in a given case. Rather, the court must determine whether the MMS is grossly disproportionate. If it is, it can be assumed that the public will find it to “outrage standards of decency” because it can be assumed that the public considers grossly disproportionate sentences to be “abhorrent and intolerable”. As was observed in R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, at para. 70, proportionality is “grounded in elemental notions of justice and fairness, and is indispensable to the public’s confidence in the justice system.”

38Determining what sentence is proportionate in a given situation is to be determined by the courts, not the public. Not only is the requirement for proportionality in sentencing codified in s. 718.1 of the Criminal Code, it is a “sine qua non of a just sanction”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37. Determining what is or is not proportionate in any given situation is a task that sentencing judges across Canada engage in on a daily basis. If courts can determine what is proportionate without consulting the public, then they can determine what is grossly disproportionate without doing so.

39Even if a public opinion poll would reveal that a majority of the public agrees with the MMS, the purpose of the Charter is not to conform to the will of the majority but, rather, to protect individuals from it. As Lamer J. (as he then was) observed in R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, at p. 282, “[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority”. See also R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 84; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 21. Determining whether a MMS comports with s. 12 does not require a court to determine whether the public approves of the MMS in the abstract. Rather, as Nur and other cases make clear, it requires a determination of whether the MMS results in a grossly disproportionate sentence in foreseeable situations. Informed and reasonable members of the public may disagree on whether an MMS is generally appropriate, but will agree that a grossly disproportionate sentence cannot be tolerated.

(iii) Reasonable Foreseeability

(a) Reliance on Reported Cases

40The appellant submits that the hypotheticals relied on by the trial judge were not reasonably foreseeable. With respect to the unwanted kiss, counsel for the appellant submits that it is unlikely that anybody would report such an incident to the police, even more unlikely that the police would lay a charge, and even more unlikely that the Crown would prosecute such a charge.

41I do not agree that the trial judge’s hypothetical situation was not reasonably foreseeable. It was based on an actual case that the trial judge had presided over and she noted that she had dealt with a number of cases involving a single, unwanted kiss. In my view, it was entirely appropriate for the trial judge to rely on her considerable experience in assessing what type of situation was reasonably foreseeable.

42The personal characteristics of accused persons that the trial judge considered were also based on real cases, including Hood and Scofield. In any event, in my view, it cannot seriously be suggested that any hypothetical involving an Indigenous offender or an offender with mental health problems or other vulnerabilities is “far-fetched”. As Martin J. observed in Boudreault, at para. 55, offenders with these types of vulnerabilities “appear with staggering regularity in our provincial courts.”

(b) Reliance on Crown Discretion

43With respect to the appellant’s submission that the Crown would not prosecute cases involving only a kiss and the police would not lay charges, in my view this is simply a variation of an argument that was considered and rejected by McLachlin C.J.C. in Nur, at paras. 85-88:

The Attorneys General of Canada and Ontario argue that the Court of Appeal erred by not taking into account the Crown’s ability to elect to proceed summarily and thereby avoid the mandatory minimum sentence in the indictable offence. They argue that the hybrid nature of the offence should be taken into account as a factor when assessing the likelihood that a general application of the offence would result in a grossly disproportionate sentence being imposed. Put differently, they contend that the Crown’s election to proceed summarily and thereby avoid a mandatory minimum prevents s. 95 from being grossly disproportionate when the conduct is at the less serious end of the spectrum.

I cannot agree. To accept this argument would result in replacing a public hearing on the constitutionality of s. 95 before an independent and impartial court with the discretionary decision of a Crown prosecutor, who is in an adversarial role to the accused.

Sentencing is inherently a judicial function. It is the courts that are directed by Parliament to impose a mandatory minimum term of imprisonment, and it is the duty of the courts to scrutinize the constitutionality of the provision. The Crown’s submission is in effect an invitation to delegate the courts’ constitutional obligation to the prosecutors employed by the state, leaving the threat of a grossly disproportionate sentence hanging over an accused’s head.

Lamer J., for the majority of the Court, firmly rejected this argument in Smith, at p. 1078:

In my view the section cannot be salvaged by relying on the discretion of the prosecution not to apply the law in those cases where, in the opinion of the prosecution, its application would be a violation of the Charter. To do so would be to disregard totally s. 52 of the Constitution Act, 1982 which provides that any law which is inconsistent with the Constitution is of no force or effect to the extent of the inconsistency and the courts are duty bound to make that pronouncement, not to delegate the avoidance of a violation to the prosecution or to anyone else for that matter. [Emphasis added.]

See also R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at paras. 20-25, where the Court made it clear that the duty to ensure proportionality in sentencing lies with the judiciary, not the Crown.

44In Nur, the Crown argued that a grossly disproportionate sentence could be avoided by the Crown proceeding summarily. In this case, the only way a grossly disproportionate sentence could be avoided would be for the Crown not to proceed with the prosecution. However, there may be cases where the MMS is inappropriate, but the accused should nonetheless be held criminally accountable for his or her conduct. In other words, in some cases the only available options would be a grossly disproportionate sentence or no sentence at all. In my view, allowing those who commit crimes to escape prosecution in order to preserve a MMS does not advance the interests of justice.

(iv) Foreseeable Hypotheticals and Gross Disproportionality

(a) The Range of Conduct Caught by the Impugned Section

45The real issue, as I see it, is whether the MMS would be a grossly disproportionate sentence when applied to the hypothetical situations considered by the trial judge or any other reasonably foreseeable hypothetical situation. If the trial judge was correct and there exists a reasonably foreseeable situation in which the MMS would be grossly disproportionate, then the appeal must fail. If she was incorrect and there is no reasonably foreseeable situation in which the MMS would be grossly disproportionate, then her conclusion that s. 12 was violated cannot be sustained.

46As was observed in Lloyd, at para. 3, the success of a s. 12 challenge will often depend on the range of conduct caught by the offence in question (at para. 3):

As this Court’s decision in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, illustrates, the reality is that mandatory minimum sentences for offences that can be committed in many ways and under many different circumstances by a wide range of people are constitutionally vulnerable because they will almost inevitably catch situations where the prescribed mandatory minimum would require an unconstitutional sentence.

47The appellant submits that s. 151 of the Criminal Code captures only a narrow range of conduct such that the MMS will never be grossly disproportionate. The trial judge was of the view that there are “infinitely variable ways” in which the offence can be committed, which increases the likelihood that the MMS is constitutionally unsound. I agree with the trial judge.

48The trial judge based her conclusion that s. 151 captures a broad range of conduct on R. v. M.B., 2013 ONCA 493, at para. 21 where Strathy J.A. (as he then was) noted in relation to the offence of sexual exploitation contrary to s. 153 of the Code that “there are infinitely variable ways in which the offence can be committed and a wide range of offenders.” Section 153 has basically the same essential elements as s. 151, as well as the additional element that the accused be in a position of trust or authority to the victim or that the victim be in a relationship of dependency to the accused. It follows that if s. 153 captures a broad range of conduct, the range of conduct captured by s. 151 is even broader: Caron Barette, at para. 98; R. c. Jomphe, 2016 QCCQ 11271, at para. 60.

49The appellant is correct that s. 151 creates a specific intent offence, unlike sexual assault, and the Crown must prove that the touching was for a sexual purpose. As well, s. 150.1 of the Code sets out certain exceptions in cases where the complainant consents to the touching and the accused’s age is close to that of the complainant. Thus, an individual can only be convicted if the touching was for a sexual purpose and either the complainant did not consent or the accused was older than the complainant by a specified number of years. In this sense, the offence of sexual exploitation is not as broad as the offence of sexual assault. However, s. 151 applies to any touching on any part of the body. .

(b) The trial Judge’s Hypotheticals

50I agree with the trial judge that a 90-day prison sentence for an unwanted kiss or attempted kiss by an 18-year old on a 15-year-old would be grossly disproportionate. I do not draw this conclusion because I think that such conduct is not serious. Despite the suggestion that the Crown would not prosecute such a case, in my view any unwanted touching of a sexual nature is serious. Whether it deserves a sentence of imprisonment is another matter. In my view, it does not.

51The biggest concern with the MMS, however, is that it fails to take into account the personal characteristics of the offender. The trial judge considered two types of characteristics that could make a sentence that is otherwise appropriate grossly disproportionate: Indigenous offenders and those with mental illnesses or disabilities.

(c) Indigenous Offenders

52It is a sad reality that Indigenous people are drastically overrepresented in Canadian prison. This is a problem that the courts must play a role in ameliorating. To do so, judges sentencing Indigenous offenders must take into account the unique systemic or background factors that have played a part in bringing the particular offender before the court. Courts must also recognize that different procedures and sanctions may be appropriate for an offender because of his or her Indigenous heritage: Ipeelee, at paras. 58-59; R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, at paras. 58-74.

53The “one size fits all” approach of a MMS can make it difficult, if not impossible to undertake the individualized approach to sentencing that Gladue and Ipeelee require. This was recognized by the Truth and Reconciliation Commission in its final report, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (2015), at pp. 173-174:

One of the most dramatic examples of the trend towards mandatory minimum sentence is the Safe Streets and Communities Act (Bill C-10), which came into force in 2012. The Act specifies minimum sentences that judges must impose for certain crimes. As a result of the new legislation, certain offences are no longer eligible for a conditional sentence.

Bill C-10 and other similar Criminal Code amendments have undermined the 1996 reforms that required judges to consider all reasonable alternatives to imprisonment, with particular attention to the circumstances of Aboriginal offenders. The Commission believes that the recent introduction of mandatory minimum sentences and restrictions on conditional sentences will increase Aboriginal overrepresentation in prison. Such developments are preventing judges from implementing community sanctions even when they are consistent with the safety of the community and even when they have a much greater potential than imprisonment to respond to the intergenerational legacy of residential schools that often results in offences by Aboriginal persons.

See also Boudreault, at para. 83; R. v. Itturiligaq, 1018 NUCJ 31, at paras. 55-65; R. v. Sharma, 2018 ONSC 1141, 44 C.R. (7th) 341, at paras. 56-69, 101-110.

(d) Offenders With Mental Illnesses or Disabilities

54A not infrequent challenge faced by sentencing judges is fashioning a fit sentence for an offender whose moral culpability is diminished because he or she suffers from a mental illness or disability. How a MMS can interfere in fashioning a fit sentence in such circumstances is illustrated by the facts in Swaby. In that case, the accused was in possession of hundreds of images of child pornography, including some depicting penetrative sexual activity between adults and very young children. He possessed it for his own sexual gratification. However, he had a significant developmental disability with an IQ of between 49 and 59, which put him in the 0.01th percentile, and also likely suffered from some form of schizoaffective disorder and major depressive disorder. It was the opinion of two psychologists who assessed him that he would not be able to tolerate incarceration and that it would be very detrimental to him.

55Both the trial judge and the summary conviction appeal court judge in Swaby concluded that the MMS would be grossly disproportionate in the circumstances. In dismissing a further Crown appeal, Bennett J.A. stated (at para. 87):

Judge Galati properly concluded that a carceral sentence would be grossly disproportionate to the CSO that he ultimately imposed on Mr. Swaby. Although Mr. Swaby’s offending was extremely serious, it was ameliorated by his personal circumstances. In his unusual circumstances, I agree with Galati P.C.J. and Marchand J. that the mandatory minimum sentence is grossly disproportionate, and that sending Mr. Swaby to prison, even to serve an intermittent sentence, would outrage the standards of decency of most informed Canadians.

In my view, the same conclusion would be reached if Mr. Swaby gave an unwanted kiss to a 15-year-old.

E. Other Cases That Have Considered the MMS in s. 151(b)

(i) Successful Section 12 Challenges

56In R. v. J.G., 2017 ONCJ 881, on which the trial judge relied, Thomas J. concluded that the 90-day MMS would be grossly disproportionate if imposed on the offender before him in circumstances where the conduct at issue would have been legal if the offender had been 35 days younger. He also considered a slight variation on the facts of the case (at para. 73):

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

57The 90-day MMS was also held to violate s. 12 in R. v. Okoro, [2018] O.J. No. 2102 (C.J.). In that case, after considering a number of hypothetical situations involving vulnerable offenders and sexual contact such as a kiss, Bacchus J. concluded (at para. 59):

The mandatory minimum sentence regime does not discriminate with respect to the age of the offender or the nature of the touching and it does not allow the court to consider the plethora of mitigating circumstances which may render a 90 day jail sentence crushing and grossly disproportionate.

58In R. c. Gagnon, 2018 QCCQ 9569, the court considered hypothetical situations involving minor, momentary touching based on reported cases, including R. v. Hilan, 2015 ONCA 455, R. v. Burton, 2012 ONSC 5920 and R. c. Akplogan, 2018 QCCQ 3024, some of which had been considered by the Québec Court of Appeal in Caron Barrette in concluding that the one-year minimum in s. 151(a) infringed s. 12. Based on these, Marleau J.C.Q. concluded that the 90-minimum in s. 151(b) was also unconstitutional (at paras. 93-11).

(ii) Unsuccessful Section 12 Challenges

59The opposite conclusion was reached in R. v. C.F., 2016 ONCJ 302, at pp. 23-24:

The defendant was a few weeks past his 18th birthday on the offence date. The actions he performed constituted touching over top of clothing and mimicking sexual activity as described in my judgment at trial. Having the complainant touch his penis is a factual element that takes this case away from perhaps the most sympathetic hypothetical. Further, the remorse associated with a guilty plea might have made the analysis more stark. But certainly this is the sort of offender and case that meets the criteria of a reasonable hypothetical, as submitted by the applicant.

The crux of the matter is that reasonably hypothetical adult offenders who commit sexual offences against children with specific intent contrary to s. 151 of the Criminal Code often receive some period of imprisonment as part of their sentence.

I agree with the Crown submission that if there is no s. 12 breach on the particularized inquiry, given the make-up of the defendant before the court, there should not be a hypothetical that grounds a breach. I have found that the mandatory minimum sentence is not grossly disproportionate in the particularized inquiry set out in this judgment. As such, given the characteristics of the particular defendant before the court, it is unlikely that any reasonable hypothetical offender could ground a s. 12 breach: See R. v. Q.(E.M.) [2015 BCSC 201, 329 C.R.R. (2d) 29] paras 169 - 171 for the sourcing of the Crown’s submission in this regard.

60With respect, it is not difficult to imagine a reasonably foreseeable hypothetical situation that is less aggravated than the facts of C.F., which involved an adult forcing a child to touch his penis. To be fair, it seems that counsel for the accused in C.F. did not present the court with any reasonable hypotheticals. As well, the court relied on the fact that the one-year MMS in s. 151(a) had never been found to violate s. 12. While this was accurate at the time, s. 151(a) has since been found to violate s. 12 in several cases: Scofield; Hood; Caron Barrette; M.L.; S.(J.D.); Hussein; Ali, S.J.P. Furthermore, the British Columbia trial decision on which the Court relied, Q.(E.M.), has been effectively overruled by Scofield.

61In R. v. Gumban, 2017 BCPC 226, the court concluded that the 90-day MMS in s. 151(b) was not grossly disproportionate when applied to the offender before the court. The court also considered two hypotheticals. In the first, a 20-year-old Aboriginal offender of good character who had himself been the victim of sexual abuse engaged in sexual activity with a person who is actually five years younger than him. In the second, the same offender believes the other person to be 16, but fails to take reasonable steps to confirm this. The court in Gumban found these hypotheticals to be “far-fetched” and was of the view that a 90-day sentence would not be grossly disproportionate. With respect, I disagree on both points. As the facts of J.G. illustrate, a situation in which consensual sexual activity occurs between individuals who are just slightly more than five years apart in age is not far-fetched. Depending on the nature of the contact and the antecedents of the accused, a 90-day prison sentence may well be grossly disproportionate in such circumstances.

62I note that there have been unsuccessful s. 12 challenges to the 45-day MMS that was in effect before 2012: R. v. S.A., 2016 ONSC 5355; R. v. Aldersley, 2018 BCSC 734.

63For all of these reasons, I agree with the trial judge that there are reasonably foreseeable circumstances in which the 90-day MMS in s. 151(b) of the Criminal Code would result in a sentence that is grossly disproportionate. The section therefore infringes s. 12 of the Charter.

F. Section 1 of the Charter

(i) Analytic Framework

64It is well established that in order to justify an infringement of a Charter right, the Crown must show that the law has a pressing and substantial objective and that the means chosen are proportional to that objective, that is, that (1) the means adopted are rationally connected to the objective; (2) the law minimally impairs the right in question; and (3) there is proportionality between the deleterious and salutary effects of the law: R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; Nur, at para. 111.

(ii) Pressing and Substantial Objective: Addressing Sexual Offences Against Children

65Counsel for the appellant acknowledges that she is unaware of any case in which a s. 12 violation was upheld under s. 1. Nor am I. However, it would appear that a s. 1 justification for a s. 12 violation is theoretically possible: Nur, at para. 111; Boudreault, at para. 97. Counsel for the appellant submits that s. 1 should be applied in this case because of the gravity of and harm caused by sexual offences against children. Counsel submits that the courts do not fully appreciate the seriousness of sexual offences against children or the extent of the harm such offences cause and that such offences are “downplayed” by lawyers and judges. As a result, without a MMS there is a risk that courts will impose inadequate sentences, including discharges.

66I agree with counsel for the appellant that sexual offences against children are among the most abhorrent offences dealt with by our courts, and I agree that the full extent of the harm caused by such offences may not yet be properly understood. However, I do not agree that the courts “downplay” such offences or fail to treat them seriously, nor do I agree that absent the MMS, there is a risk that inadequate sentences will be imposed.

67The need to recognize the harm caused by these offences and to ordinarily impose exemplary sentences for them was made clear by Moldaver J.A. (as he then was) in terms that leave no room for misunderstanding in R. v. D.D. (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), at paras. 34-36, 45.

Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718(a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.

We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and, as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.

The harm occasioned by the appellant and others like him is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear -- prey upon innocent children and you will pay a heavy price!

68These principles have been re-affirmed numerous times: R. v. F.H.L., 2018 ONCA 83, 360 C.C.C. (3d) 189, at para. 27; R. v. R.B., 2017 ONCA 74, at para. 21; R. v. Rafiq, 2015 ONCA 768, 342 O.A.C. 193, at paras. 42-45; R. v. C.C., 2015 ONCA 59, 329 O.A.C. 272, at paras. 60-61; R. v. H.S., 2014 ONCA 323, 308 C.C.C. (3d) 27, at paras. 41-43; R. v. J.N., 2013 ONCA 251, 305 O.A.C. 175, at para. 55; R. v. D.M., 2012 ONCA 894, 295 C.C.C. (3d) 159, at para. 66; R. v. D.M., 2012 ONCA 520, 111 O.R. (3d) 721, at paras. 36-38; R. v. B.A., 2008 ONCA 556, 238 O.A.C. 198, at paras. 62-63.

69D.D. and the others cases cited are, of course, binding on the trial courts of this province. As a result, the appellant’s concerns about undue judicial leniency are, in my view, unfounded. The existence of this binding appellate guidance makes the MMS entirely unnecessary: John, at para. 41. Furthermore, in any case where a sentencing judge fails to impose a fit sentence, the Crown can always seek an appellate remedy.

70All of that said, I accept that the MMS in s. 151(b) has a pressing and substantial objective and that the means adopted are rationally connected to it: Lloyd, at para. 49; Nur, at paras. 114-115.

(iii) Proportionality

71As in Lloyd, at para. 49 and Nur, at para. 118, the s. 1 argument fails with respect to minimal impairment because a law that allowed for a departure from the MMS in exceptional circumstances would impair the right in question to a lesser extent than does the current legislative scheme. In this regard, I note that in D.D., despite the emphatic call for denunciatory sentences, the Court recognized that there remains a need for flexibility (at para. 33):

Before going further, I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.

72It is difficult to conceive of a situation in which a grossly disproportionate sentence would satisfy the proportionality requirement in the Oakes analysis, a point that was eloquently made by Doherty J.A. in the Ontario Court of Appeal’s decision in R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401 (aff’d supra), at paras. 180-181:

No system of criminal justice that would resort to punishments that “outrage standards of decency” in the name of furthering the goals of deterrence and denunciation could ever hope to maintain the respect and support of its citizenry. Similarly, no system of criminal justice that would make exposure to a draconian mandatory minimum penalty, the cost an accused must pay to go to trial on the merits of the charge, could pretend to have any fidelity to the search for the truth in the criminal justice system.

If an argument can be made that could justify sheltering a sentence that amounted to cruel and unusual punishment under s. 1, I have not heard it.

73As noted, no s. 1 argument has ever succeeded with respect to a MMS that has been found to violate s. 12. This case will not be the first.

III. DISPOSITION

74For the foregoing reasons, I conclude that the trial judge was correct that the MMS in s. 151(b) of the Criminal Code infringes s. 12 of the Charter and the infringement is not saved by s. 1. Pursuant to s. 52 of the Constitution Act, 1982, there will be a declaration that the words “and to a minimum punishment of imprisonment for a term of 90 days” in s. 151(b) are of no force or effect.

75Nothing in these reasons should be taken as suggesting that a significant sentence of imprisonment would not be appropriate in the vast majority of cases where individuals are convicted under s. 151, whether the Crown proceeds summarily or by indictment.

76The appeal is dismissed.

Footnotes

1. 1The respondent has served her conditional sentence. The Crown does not seek to have her re-incarcerated.
2. 2The Court found the MMS to be unconstitutional in cases where the offence was committed as described in s. 172.1(1)(a) and (b) only and did not consider s. 172.1(1)(c): Hood, at paras. 148, 156.
3. 3The section has since been repealed and replaced by s. 286.1(2).