NOTICE OF RESTRICTION ON PUBLICATION

Pursuant to s. 486.4(1) of the Criminal Code, information that may identify the complainant may not be published, broadcasted, or transmitted in any manner.

REASONS FOR DECISION

(REVISITING PRIOR DECISION, CONSTITUTIONALITY OF MANDATORY MINIMUM SENTENCE FOR INCEST, and SENTENCING)

These reasons are organized under the following headings.

A. INTRODUCTION……paras 1-14

B. FACTUAL CONTEXT……paras 15-22

C. RECONSIDERATION OF MY PRIOR DECISION UNDER S. 7 OF THE CHARTER

My June 2025 Ruling on This Issue……paras 23-25

2 . The Supreme Court of Canada’s Decision in I.M.……paras 26-34

Analysis……paras 35-40

D. SENTENCING D.C. UNDER THE YCJA……paras 41-49

E. SENTENCING D.C. UNDER THE CRIMINAL CODE

General Principles of Sentencing……paras 50-58
General Principles of Cruel and Unusual Punishment……paras 59-70
Stage One: Fit and Appropriate Sentence for D.C.

Aggravating Factors……paras 71-74

Mitigating Factors……paras 75-80

Restraint……paras 81

Denunciation, Deterrence, and Rehabilitation……paras 82-84

Parity in Sentencing……paras 85-92

Impact of Disability on Sentence……paras 93-98

Proportionality……paras 99-103

Conclusion: Fit Sentence for D.C. ……paras 104-121

Stage One: Fit and Appropriate Sentence for Reasonably Foreseeable Scenario……paras 122-126
The Rule of Stare Decisis and its Application to R. v. M.R.M

The Decision Alleged to be Binding……paras 127-133

The Rules of Stare Decisis……paras 134-136

Analysis and Conclusion……paras 139-150

Stage Two: Comparison of the Fit Sentence with Mandatory Minimum……para 151

The Test……paras 152-155

The Scope and Reach of the Offence……paras 156-157

Effects of the Penalty on the Offender……paras 158-162

The Penalty and its Objective……paras 163-167

The Mandatory Minimum is Cruel and Unusual Punishment……paras 168-171

Section 1 of the Charter……paras 172-177

F. CONCLUSION and SENTENCE IMPOSED……paras 178-181

A. INTRODUCTION

1D.C. was charged in 2022 with two counts of incest and one count of sexual assault. The charges relate to sexual activity between D.C. and his biological sister over a period of approximately four years, commencing when she was 12 years old. At the times covered by the indictment, D.C. was over the age of 18, and considered an adult for purposes of the Criminal Code of Canada.¹ For some of that time, the complainant had reached the age of 16.

2Although chronologically an adult, expert evidence presented by the defence establishes that D.C. has an intellectual disability that affects his cognitive functioning and decision-making, such that his cognitive age equivalency would be 9 to 12 years old.

3At the outset of trial, the defence brought an application seeking a declaration that, given his developmental age equivalency, D.C. should be entitled to the protections and benefits of the Youth Criminal Justice Act² and that those provisions of the YCJA that restrict its applicability to him should either be read in a manner that includes him, or alternatively, be declared unconstitutional as contrary to the rights set out in s. 7 and 15 of the Canadian Charter of Rights and Freedoms.³

4For reasons issued on June 6, 2025, I dismissed that application.⁴ I held that the YCJA was an ameliorative program to protect children and that the exclusion of adults who might have similar reasoning deficits did not breach s. 15 of the Charter. I also ruled that D.C.’s rights under s. 7 of the Charter were not breached simply because he was excluded from the protections in the YCJA. I specifically made no ruling on Charter issues related to sentencing, including whether the mandatory minimum sentence for incest offended s. 12 of the Charter as constituting cruel and unusual punishment.

5The next step in the proceeding was to be a trial on the merits. However, the parties filed a comprehensive statement of facts that were not contested by the accused. Based on those uncontested facts, I found D.C. guilty of the offences charged:

Two counts of incest contrary to s. 155(2) of the Criminal Code (the first count related to the period of time when D.C. was over 18 and his sister was under 16 and the second count covered the period after she was 16).
One count of sexual assault contrary to s. 271 of the Criminal Code (relating to sexual assaults that did not include intercourse).

6The case then proceeded to the sentencing phase, which was the third and final stage of this matter. There being no jury, all three phases of the proceeding were conducted on a blended basis, with the evidence filed being applicable to all aspects of the case.

7At this last phase of the proceeding, the defence also sought to re-open its argument that the age definition in the YCJA violated D.C.’s rights under s. 7 of the Charter, which had been part of the application I had dismissed on June 6, 2025. This new application to re-open was based on the Supreme Court of Canada’s decision in R. v. I.M.,⁵ which was released in July 2025.

8Based on the decision in I.M., the defence also argued, in the alternative, that because of D.C.’s reduced capability for moral reasoning, I must sentence him under the YCJA, rather than under the Criminal Code, and that failing to do so would violate principles of fundamental justice under s. 7 of the Charter.

9In the further alternative, the defence argued that if I proceed to sentence D.C. under the Criminal Code, I must do so in a manner that reflects the impact of his disability on his moral blameworthiness. One of the offences upon which I found D.C. guilty is incest with an under 16-year-old complainant (his sister). That offence is subject to a mandatory minimum sentence of five years. The defence challenges the constitutionality of that mandatory minimum both as it applies to D.C. and based on a reasonably foreseeable scenario involving a hypothetical offender with a developmental disability.

10I have considered the Supreme Court’s decision in I.M. and I find it does not affect my earlier ruling. That decision stands.

11I have also considered whether I.M. has established a principle of fundamental justice that would require D.C. to be sentenced under the YCJA regime, rather than under the Criminal Code. I have concluded that it does not. D.C. must be sentenced under the Criminal Code, but his disability must be part of the analysis in determining a fit sentence, particularly with respect to the extent of his moral blameworthiness and his prospects for rehabilitation. Failing to take his disability into account would, in my opinion, be a breach of his equality rights under s. 15 of the Charter.

12Finally, I have concluded that the mandatory minimum sentence of five years for the incest offence that occurred prior to the complainant’s 16th birthday constitutes “cruel and unusual punishment” under s. 12 of the Charter, both as it relates to D.C. directly and when considered in light of the reasonably foreseeable scenario posited by the defence. In the result I find that provision to be of no force and effect.

13I must therefore determine the appropriate sentence for D.C. in all the circumstances of this case. In my view, the appropriate sentence is two years less a day to be served conditionally in the community, followed by three years’ probation. Counselling and educative programming will be key components of both the conditional sentence and probation. I have approached the sentencing on a global basis. The most serious offence is incest when the complainant was under the age of 16, and the two years less a day sentence will be attributed to that. I will assign a sentence of 18 months conditional on the other two counts, with the same terms, to be served concurrently.

14My reasons for these findings are set out below.

B. FACTUAL CONTEXT

15On May 16, 2022, D.C.’s sister (who was then 16 years old) disclosed to her high school guidance counsellor that her brother had been sexually assaulting her for years. The counsellor called the police, which led to charges being laid. The accused does not contest his sister’s assertion that the assaults began before he was 18 years old. However, the Crown preferred an indictment which alleges assaults only after D.C.’s 18th birthday on May 12, 2018 and continuing until May 13, 2022.

16At trial, a statement of evidence was tendered by the Crown and marked as Exhibit 1. The defence does not contest these facts.

17D.C. sexually assaulted his sister when she was between the ages of 12 and 16. He was four years older than her. These assaults included penetrative intercourse. Sometimes, he would use a condom. Other times, when he did not wear a condom, he would go to the bathroom to ejaculate. Mostly, these acts took place in the family home, typically in the complainant’s bedroom. However, there were also occasions where the accused had sex with the complainant at the family cottage. There were some occasions when the complainant protested that she did not want to have sex with him, felt pain, and did not enjoy it. He proceeded anyway. At other times, she did not protest, but she never subjectively consented. For some of these occasions, the accused would watch pornography and then emulate some of the pornographic acts with the complainant. Sometimes he told her that she needed to know how these things felt as preparation for when she had a husband and wanted to get pregnant. Sometimes, he would reward her for sex by giving her money or candy.

18In May 2022, the complainant had disclosed to a friend that her brother had been sexually violating her. Her friend suggested that she make a recording if this happened again. On May 13, 2022, the complainant returned home from school at about 4:00 p.m. She went to her room. At the time, D.C. was the only other person in the house. He entered her room completely naked. Recalling that D.C. had given her $20 for a school trip the day before, the complainant assumed he was there for sex and took her clothes off. She surreptitiously audio-recorded what followed on her cellphone. The recording is a sealed exhibit in this proceeding. On the recording, the complainant can be heard telling D.C. she was in pain and also telling him to stop. She referred to him “just forcing it in.” It is clear that D.C. heard these protests and that he nevertheless continued, if anything, with increased intensity.

19Both D.C. and his sister have developmental disabilities. I do not have full particulars of the extent of the complainant’s disability. She attended high school, as did D.C. However, she is now an adult. She lives with her parents, does not work, and receives disability benefits. Otherwise, I do not know the impact of her disability on her day-to-day life.

20I do have detailed information about the extent of D.C.’s disability. In the earlier Charter motion, I heard expert evidence on this issue, which is agreed to be relevant and admissible at this stage of the proceeding. D.C. was assessed by Dr. Josee Casati, who is a clinical psychologist at Surrey Place, an organization serving people with developmental disabilities and Autism Spectrum Disorder. Dr. Casati has special expertise in conducting assessments to diagnose individuals with intellectual and/or developmental disabilities. I reviewed Dr. Casati’s evidence in my previous decision and will not repeat it all here. For present purposes, I note that Dr. Casati diagnosed D.C. as having a “Mild Intellectual Development Disorder (Intellectual Disability)”. She testified that classifications for the extent of this disorder are: mild, moderate, severe, and profound. These categories are based on ranges into which numerical scores are slotted, based on the percentile scores in the general population. Only individuals scoring below the 4th percentile on the relevant standardized tests would meet the diagnosis criteria, after allowing for the margin of error. To make this diagnosis more understandable for lay people, Dr. Casati testified that C.D. had the mental age equivalent of a child between the ages of 9 and 12. He scored significantly higher in tests reflecting perceptual reasoning and visual learning. His scores for reading skills were substantially lower. There were some areas in which he tested within the average range of abilities, notwithstanding the overall assessment placed him within the criteria for an intellectual developmental disability.

21I note that much of the case law in this area also refers to the “developmental age” of an individual with an intellectual disability. However, a “developmental age” based on psychological testing does not tell the whole story about this young man. Notwithstanding his intellectual deficits, he graduated from high school, acquired a driver’s license, and continues to work in a warehouse, driving a forklift. He does not receive any form of government assistance. As a term of his bail, he resides with his grandmother. Previously, he lived in the family home with his parents, the complainant, and one other sibling.

22Thus, although for practical purposes D.C. may be functioning as an adult, his intellectual skills, including his capacity for moral reasoning, are substantially below the level of an adult. Because of his disability, he falls squarely within the concept of “diminished moral blameworthiness” which underlies the very purpose of the protections afforded to children under the YCJA.

C. RECONSIDERATION OF MY PRIOR DECISION UNDER s. 7 OF THE CHARTER

1. My June 2025 Ruling on This Issue

23In my earlier decision, I dealt first with whether D.C.’s equality right under s. 15 of the Charter were violated by the definition of age under the YCJA, which was based on a chronological age only. I concluded that it was not, largely because of the operation of s. 15(2) of the Charter which protects ameliorative programs for disadvantaged groups from complaints by others not included.

24I then considered the defence argument that. D.C.’s s. 7 rights were violated by not including him within the YCJA regime and the many procedural protections provided therein, given that he was similarly situated to young persons in terms of moral blameworthiness. Although I acknowledged that the life and security interests of D.C. under s. 7 were engaged by his exclusion from these procedural provisions and the sentencing regime under the YCJA, I held as follows:

Nevertheless, I do not agree that the exclusion of D.C. from the YCJA because of his chronological age constitutes a breach of s. 7 rights under the Charter. In my view, the provisions of the Criminal Code and existing jurisprudence under ss. 7-12 of the Charter provide ample safeguards with respect to D.C.’s rights under s. 7 of the Charter. These are individual rights and their content and ambit depend substantially on the particular circumstances in which they arise. As a person with a disability, D.C. is entitled to be accommodated if he has needs or vulnerabilities that require different treatment than might be the case for other persons charged with an offence. There is ample scope for individualizing the protections provided under ss. 7-12 of the Charter within the existing legislation and case law. For example, for a person with an apparent intellectual disability, extra steps might need to be taken to ensure rights to counsel are understood, just as would be the case for someone who did not speak English. Likewise, questions of voluntariness and the tests for admissibility of statements by an accused already take into account the particular circumstances of the accused. Considering the impact of an intellectual disability on those tests would simply be a logical extension. The YCJA does not shield young people from accountability for offences they commit. The situation for D.C. would be no different. The actus reus of any offence is typically entirely objective. However, the issue of mens rea is individualized, and D.C.’s intellectual abilities might well be a factor in determining his level of criminal intent. The concept of moral blameworthiness is already built into the framework for sentencing under the Criminal Code and is also highly individualized.

I will not attempt to itemize all the ways in which the existing criminal law regime would adapt and accommodate the individual circumstances of persons in a similar situation to D.C. These are merely examples. My point is that human rights legislation and the Charter require the accommodation of persons with disabilities up to the point of undue hardship. This includes the way they are treated in the criminal justice system. In my view, that accords with principles of fundamental justice. There is no breach of s. 7 rights simply because those protections are not provided under the YCJA or the protections provided are not identical to the protections given to young persons. The protections provided do not have to be identical to the rights provided to others, nor do they have to be “the most favourable procedures that could possibly be imagined”; they need only provide “adequate procedural protections”.⁶

25In that earlier decision, I specifically left open the issue of the constitutionality of the mandatory minimum 5-year sentence to which D.C. would be subject if convicted of the incest count on the indictment for the time period before his sister was 16.

2. The Supreme Court of Canada’s Decision in I.M.

26Defence counsel submits that the Supreme Court of Canada in I.M. recognized, as a fundamental principle of justice, that a person who does not have a developmental age akin to an adult cannot be prosecuted under the Criminal Code. Based on that principle, the charges against D.C. should be stayed.

27The central issue in I.M. is the proper interpretation of s. 72(1)(a) of the YCJA, and in particular, the test to be applied in determining whether a young person convicted of an offence should be sentenced as an adult rather than under the sentencing provisions of the YCJA. The offender was 17 years and 5 months old at the time he was involved with a group of others in killing and robbing another 17-year-old. The youth court judge convicted him of first-degree murder. The Crown applied under s. 72(1)(a) to have I.M. sentenced as an adult, to which the youth court judge acceded, sentencing I.M. to a life sentence with a 10-year period of parole ineligibility. This determination was upheld by the Court of Appeal for Ontario. The Supreme Court of Canada allowed the appeal, substituted its own determination that the Crown had not discharged its onus to rebut the presumption of diminished moral blameworthiness, and sentenced I.M. under the Y.C.J.A. to six years in custody (the maximum custodial sentence available under the YCJA), to be followed by four years supervision in the community. By this time, I.M. had already completed five years of his adult sentence. In the result, he would have one further year in custody and four years community supervision.

28Because D.C. was not tried under the YCJA, the decision in I.M. does not have direct application to this case. However, the decision explores the underlying purpose of the YCJA, and how it intersects with moral blameworthiness and s. 7 of the Charter. I agree with defence counsel that there is sufficient overlap that I should reconsider the analysis of s. 7 in my previous decision in light of the I.M. decision. The Crown did not object to reopening the issue, but took the position that the result should still be the same.

29 Section 72(1) of the YCJA states:

72 (1) The youth justice court shall order that an adult sentence be imposed if it is satisfied that

(a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and

(b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.

30In I.M., the Supreme Court held that s. 72(1) imposes a two-stage test. At the first stage, the only issue is whether the Crown has rebutted the presumption of moral blameworthiness or culpability of the young person. The seriousness of the offence is not a relevant consideration at this stage. Because of the s. 7 Charter interests at stake, the Crown must establish beyond a reasonable doubt that “at the time of the offence, the developmental age of the young offender was akin to that of an adult.”⁷ This is a threshold test which must be cleared before the trial judge considers the seriousness of the offence as part of the analysis under s. 72(1)(b). If the Crown fails to discharge its onus on the threshold issue beyond a reasonable doubt, the young person cannot be tried as an adult, regardless of the considerations under s. 72(1)(b).

31The Court in I.M. made frequent references to and relied heavily on its earlier decision in R. v. D.B.,⁸ a decision which I also relied on in my earlier decision in this case. The Court in I.M. explicitly recognized that the presumption underlying the YCJA that young people have diminished moral blameworthiness based on their chronological age is a principle of fundamental justice.⁹ The Court held:

The decision in D.B. had significant implications for the YCJA, as it confirmed that before a young person can be deprived of the benefits of the youth sentencing scheme, the Crown is constitutionally required to rebut the presumption of diminished moral blameworthiness. Parliament amended the framework for imposing adult sentences on young offenders to align with the Court’s guidance in D.B. Parliament repealed the presumptive offences regime and introduced the amended s. 72(1), which codifies the burden on the Crown — not the youth — to demonstrate why a more severe adult sentence is necessary and appropriate.

While the presumption is rebuttable, s. 72(1)(a) imposes on the Crown a heavy onus to justify the imposition of an adult sentence given its status as a principle of fundamental justice as recognized by the Court in D.B. Section 72(1) mandates the youth justice court to impose an adult sentence if it is satisfied, first, that the presumption of diminished moral blameworthiness — a principle of fundamental justice — has been rebutted; and second, that a youth sentence imposed in accordance with the purpose and principles of sentencing under the YCJA would be of insufficient length to hold the young person accountable for their “offending behaviour”.¹⁰

32D.B. involved a previous version of the YCJA in which there was a presumption that certain serious offences would be sentenced under the adult regime unless the young person established that he or she should not be liable to an adult sentence based on factors that included the seriousness and circumstances of the offence, the age maturity, character, background, and previous record of the young person. The Supreme Court found these provisions violated s. 7 of the Charter, stating:

Under the presumptive offences regime, an adult sentence is presumed to apply and the protection of a publication ban is presumed to be lost. The impugned provisions place the onus on young persons to satisfy the court that they remain entitled to a youth sentence and to a publication ban. This onus on young persons is inconsistent with the presumption of diminished moral culpability, a principle of fundamental justice which requires the Crown to justify the loss both of a youth sentence and of a publication ban. The impugned provisions are therefore inconsistent with s. 7 of the Charter and are not saved by s. 1. To the extent that they impose this reverse onus, they are unconstitutional.¹¹

33In concluding that the presumption of diminished moral blameworthiness for young people was a principle of fundamental justice under s. 7 of the Charter, the Court in D.B. identified three criteria that must be met before a particular principle meets this threshold:

(1) It must be a legal principle.

(2) There must be a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate.

(3) It must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.¹²

34Throughout its analysis in I.M., the Court frequently referred to the concept of “developmental age” as the determining factor in whether a young person should be sentenced as an adult, describing this variously as “the actual stage of psychological, social and moral maturity that an individual has attained,” “judgment and autonomy that are generally attributed to adults,” “vulnerability, maturity, and capacity for moral judgment,” and as “including the young person’s independence or dependence on others, cognitive limitations, emotional or mental health issues, the maturity or immaturity of the reasoning behind the motive of the offence, and whether the actions demonstrated critical and adult-like judgment.”¹³

3. Analysis

35I agree that there is much that can be learned from I.M. and that the general principles underlying the decision assist in the analysis of this case. I also agree that the decision in I.M. establishes that a presumption of diminished moral culpability for young offenders, under the YCJA and at common law, is a fundamental principle of justice and falls within s. 7 of the Charter. However, I do not agree that this principle must, or can, be applied to all individuals across the board, based on their having a developmental disability. Neither does it require that all individuals who have diminished moral reasoning capability must be prosecuted under the YCJA unless their developmental age is akin to that of an adult. What it does establish is that the YCJA was enacted to recognize the disadvantaged position of children in relation to the criminal justice system and that depriving individuals covered by that Act from those protections is a breach of fundamental justice unless they can be shown to have a development age akin to an adult.

36It is a considerable jump from the reasoning in I.M. to conclude that persons with developmental disabilities can never be prosecuted under the Criminal Code. That was clearly not an issue before the Court. The sole issue before it was the interpretation of provisions that, by definition, apply only to individuals under the chronological age of 18. The decision in I.M. dealt only with the sentencing of young offenders who were already included within the protection of the YCJA; it made no reference to other individuals who had attained the chronological age of 18, but who might have a developmental age under 18.

37As I noted above, the Court in I.M. held that three criteria must be met before recognizing something as a fundamental principle of justice, the third of which is that it must be “identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.” Intellectual disabilities are infinitely variable and can stem from a wide variety of causes, including: developmental disabilities; genetic conditions; acquired traumatic brain injuries; senile dementia, to name a few. Some levels of impairment may be readily apparent, whereas others might not. There is no precise or objective standard that can be used to determine an equivalent developmental age. Most cases would require an individualized assessment by a professional to reach such a conclusion. This would not typically be available at the time charges are laid, and information about it might not be available until well into the case. There can also be legitimate disputes about the level of intellectual capacity, particularly those that are close to the cut-off point. These are not issues capable of being defined precisely, which is very different from chronological age which is typically easily ascertainable.

38I reject the defence argument that the charges under the Criminal Code must be stayed based on the expert opinion filed relating to D.C.’s approximate developmental age. In my view, this is not something that flows from the decision in I.M. and does not meet the test for recognition of a fundamental principle of justice. It is an unworkable proposal and unnecessary to protect the rights of the accused, for reasons already stated in my earlier decision.

39That is not to say that the principles established in I.M. as to the connection between developmental age, moral blameworthiness, and a just sentence have no application to this case. To the contrary, they are directly applicable; but that does not mean that the only protection for those principles is under the YCJA. I will deal in more detail with the protection of these principles within the framework of the sentencing provisions in the Criminal Code.

40Accordingly, I find the decision in I.M. does not change my earlier decision as to whether proceeding with charges against D.C. under the Criminal Code violated his rights under s. 7 of the Charter.

D. SENTENCING D.C. UNDER THE Y.C.J.A. RATHER THAN THE CRIMINAL CODE

41The defence argues, in the alternative, that even if the prosecution of the charges against D.C. started in adult court, adherence to the principles established in I.M. requires that D.C. be sentenced under the YCJA. The defence proposes that I reconstitute this court as a Youth Justice Court and sentence D.C. in accordance with that regime, including all the protections under Part 4 of the YCJA (dealing with sentencing).

42In I.M., the Supreme Court considered the test that should be applied when the Crown applies to have a young person sentenced as an adult rather than under the YCJA. The Court held that the onus is on the Crown to establish beyond a reasonable doubt that the young offender has a developmental age akin to an adult before that offender can be sentenced under the Criminal Code. The Crown before me very fairly conceded that if D.C. had been prosecuted as a young person under the YCJA, the Crown would not be able to establish beyond a reasonable doubt that D.C. had a developmental age akin to an adult. Thus, if D.C. had started under the YCJA, he could not be sentenced as an adult. What the defence is proposing here, is the flip side of that situation. Instead of the I.M. test for sentencing a young person as an adult, we have a proposal to sentence an adult as a young offender.

43The defence recognizes that the process for determining that an adult should be sentenced under the YCJA, will need to be procedurally different from determining that a young offender should be sentenced as an adult under the Criminal Code. The defence submits that in this situation the onus should be on the defence to demonstrate that the YCJA sentencing regime should apply and that the standard of proof for that determination would be on the balance of probabilities. Similar factors to those listed in I.M. would be relevant, but sometimes in the inverse. In I.M. the Court identified various factors relevant to this determination, including: actual age; background; sophistication in thinking; capacity for independent judgment; behaviour after the offence; whether the person was living like an adult; cognitive, emotional, and mental health; susceptibility to external influences among others; and, the degree of independence the person had at the time of the offence.¹⁴

44I do not accept that the approach in I.M. applies in the inverse and allows me to sentence an adult with a lower developmental age as a youth offender. However, I do accept that it is appropriate to extrapolate from the findings in I.M. to conclude that if an offender has a developmental age below that of an adult, that offender’s diminished capacity for moral reasoning must be a factor in determining an appropriate sentence under the Criminal Code. In my view, that flows naturally from the decisions in I.M. and D.B, which alter sentencing outcomes based on the developmental age of the offender. Further, failing to take that factor into account on sentencing would be a breach of s. 7 of the Charter, as the procedural rights guaranteed to D.C. under s. 7 of the Charter must be applied in a manner that takes into account any special needs or vulnerabilities attributable to his disability. However, that does not mean that such offenders must then be sentenced under the YCJA, nor does it necessarily mean that the same kind of sentencing regime and protections provided under the YCJA must apply. Identical treatment is not required, as was recognized in Weatherall v. Canada (Attorney General) and many other cases since then.¹⁵

45Adults with developmental disabilities are not children, and they must not be treated as if they are children. If, because of their disability, they have a diminished capacity for moral reasoning and a developmental age that is below 18, that must be reflected in the sentencing analysis. In my view, that would be required by both ss. 7 and 15 of the Charter, as s. 15 protects D.C.’s right to the reasonable accommodation of his disability.¹⁶ However, the Criminal Code already requires that the level of moral responsibility be taken into account at the sentencing stage. It is a fundamental principle of sentencing that “a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.”¹⁷ The “degree of responsibility of the offender” has been interpreted to include the level of moral blameworthiness that can be attributed to the offender. As stated by the Supreme Court of Canada in R. v. M. (C.A.):

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.¹⁸

46The sentencing regime under the YCJA, unsurprisingly, is geared towards young people. Many of the sentencing provisions relate to the type of custodial institutions to which the young offender can be sentenced, which would have no application to an adult. There are also many provisions providing for notice to parents, and giving parents a role in the proceedings, which also may be inappropriate for an adult with a developmental disability. Although the offender in this case is in his twenties and still lives with family, that will not always be the case, particularly for much older offenders. Accommodating these differences would require considerable adaptations to the language of the Act.

47The YCJA provisions relating to a finding of guilt and not creating a “criminal record” also do not fit well. These provisions contemplate that an individual will eventually age out of the YCJA regime. Offences committed after the age of 18 will be subject to disclosure to others and may be required to be disclosed for certain kinds of employment. However, a person with a developmental disability, if always sentenced under the YCJA, will have those privacy protections for their entire lives, which would sometimes be inconsistent with the protection of the public, depending on the nature of the offences.

48Thus, there are considerable disadvantages to transferring an adult person into the YCJA for sentencing. On the other hand, most of the advantages of the YCJA sentencing model can also be applied through the criminal sentencing process, provided that the unique characteristics of the individual are taken into account and moral blameworthiness plays a pivotal role (both of which are requirements under the Criminal Code sentencing provisions).

49Sentencing D.C. under the YCJA would require making so many adjustments to the YCJA provisions that it would almost be like writing new legislation. I do not consider that to be an appropriate role for a judge, nor would it create a workable regime as the regime would likely be fraught with uncertainty from case to case and jurisdiction to jurisdiction. On the other hand, sentencing D.C. under the Criminal Code merely requires that I consider his individual characteristics and his level of moral blameworthiness, while keeping his disability in mind. This is fully consistent with the underlying principles of sentencing which are already part of the Criminal Code. I am therefore of the view that s. 7 of the Charter does not require that the YCJA be the sentencing vehicle for persons with developmental ages below the age of 18. Sentencing can be done under the Criminal Code without violating any Charter rights of the accused, provided that any particular circumstances related to the person’s developmental disability are properly accommodated.

E. SENTENCING D.C. UNDER THE CRIMINAL CODE

1. General Principles of Sentencing

50It is a fundamental principle of constitutional law and statutory interpretation that, where possible, a statute must be construed in a manner that does not violate equality rights. I dealt with this principle in my earlier decision in this case and held that the age definition in the YCJA could not be interpreted to include individuals who were cognitively under the age of 18, but chronologically over that age.¹⁹ That was because that interpretation was required by the clear meaning of the words in the YCJA, interpreted in “their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament”.²⁰

51The same principle applies to the interpretation of the Criminal Code sentencing provisions. Where these provisions can be interpreted in a manner consistent with the equality rights of the accused they should be so interpreted, provided this can be done without unduly straining the plain and ordinary meaning of the words used or running afoul of the scheme and object of the Code. For the most part, this approach is fully consistent with the purposes of sentencing and the general principles required in fashioning the appropriate sentence for any given offender. This is always a balancing exercise that requires an individualized approach to the circumstances of the offender, the nature of the offence, and the broader public purpose.

52The fundamental purpose and objectives of sentencing are set out in s. 718 of the Criminal Code as follows:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(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;

(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 acknowledgment of the harm done to victims or to the community.

[Emphasis added.]

53There is nothing in these fundamental principles that would compromise the equality rights of a person with a developmental disability. The protection of society and crime prevention remain important. Having a developmental, intellectual, or cognitive impairment is not a license to commit criminal acts. Adults with such disabilities must learn to have respect for the law. Criminal sentencing provisions can be used to deter them from reoffending and to assist in their rehabilitation, particularly through periods of supportive supervision, education, and counselling. There is no difficulty with denunciation, nor reparations if appropriate, and promoting a sense of responsibility is part of the rehabilitation and deterrence processes.

54Separating the offender from society might be problematic in terms of equality rights, but is stipulated to apply only “where necessary”, which fully accords with accommodating the person’s disability to the point of undue hardship. If the individual needs to be separated from society because it is necessary for the protection of the public, then a more restorative sentence might simply not be possible. Further, it must be read in conjunction, and consistently with, other Criminal Code provisions which stipulate that imprisonment is a last resort, as follows:

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.²¹

55The Criminal Code states as a further fundamental purpose that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”²² Again, these are concepts that fit well within an interpretation that recognizes the equality rights of an offender. In determining the degree of responsibility of the offender, the sentencing judge is required to consider the offender’s moral blameworthiness, which carries with it an analysis of the extent to which the offender understood the criminal nature of his actions and had the capacity and insight to appreciate their consequences. It is this concept of moral blameworthiness that prohibits any criminal prosecution of children under the age of 12, requires children between the ages of 12 and 18 to be dealt with under the YCJA, and exempts from conviction offenders who were not criminally responsible for their actions due to a mental disorder under s. 16 of the Criminal Code. Although D.C. does not fit into any of those categories, he nevertheless has a diminished ability to reason, control, and understand the consequences of his actions, which means he will likely have a lesser degree of moral blameworthiness than a person without that disability. This Criminal Code provision requires that D.C.’s degree of moral blameworthiness be taken into account in sentencing, which is not only consistent with, but in my view also required by, s. 15 of the Charter.

56The Supreme Court of Canada has emphasized the underlying importance of the proportionality principle and that it overrides whatever weight might be given to other principles referred to in the Criminal Code sentencing provisions. These principles (the seriousness of the offence and the moral blameworthiness of the offender) impose a limit on how other factors can influence the ultimate sentence. No matter what other factors may apply, the sentence imposed must be proportionate. In Senneville, the majority of the Court held:

Proportionality, whose constitutional dimension is enshrined in s. 12 of the Charter (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 41; R. v. Bissonnette, 2022 SCC 23, [2022] 1 S.C.R. 597, at para. 52), nevertheless remains the central tenet of sentencing. “[W]hatever weight a judge may wish to accord to the objectives [listed in s. 718], the resulting sentence must respect the fundamental principle of proportionality” (Nasogaluak, at para. 40 (emphasis in original); see also R. v. J.W., 2025 SCC 16, at para. 42). As the principle of proportionality requires only consideration of the gravity of the offence and the degree of responsibility of the offender, it performs a limiting function with respect to the objectives of sentencing. It therefore has the effect of limiting the pursuit of other objectives (Nasogaluak, at para. 42). In other words, these other objectives do not render a sentence more proportional or less proportional; rather, proportionality imposes a limit on their pursuit.²³

57There are also sections of the Criminal Code providing protections for victims of crime and stipulating that their interests must be considered in sentencing. These include the following:

s. 718.01- When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

s. 718.04 - When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

s. 718.02 (a) - A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii.2) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

shall be deemed to be aggravating circumstances.

58The complainant in this case was a family member of the offender, she was under the age of 18, and the offence had a significant impact on her because of her age and developmental disability. These are deemed to be aggravating factors. Also because of her own developmental disability and the fact that she lived in the same household as the offender, she was particularly vulnerable, as well as being under 18. Section 718.01 of the Criminal Code requires in these circumstances that priority be given to deterrence and denunciation. In my view, the consideration and accommodation of D.C.’s developmental disability and consequent degree of moral responsibility are not undermined by these principles. Clearly the impact on the victim, particularly in light of her own vulnerability, is an aggravating factor on sentencing and priority should be given to deterrence and denunciation. However, that does not rule out a sentence that is tailored to the circumstances of this offender, nor does it preclude a conditional sentence, for reasons I will explore in more detail below in considering the appropriate sentence for D.C.

2. General Principles: Cruel and Unusual Punishment

59A significant portion of D.C.’s offending conduct included sexual intercourse with his sister while she was under the age of 16. Section 155(2) of the Criminal Code provides that if the victim of incest is under the age of 16 years, the mandatory minimum punishment is imprisonment for a period of five years. The defence challenges the constitutionality of this provision as being contrary to s. 12 of the Charter, which provides that “[e]veryone has the right not to be subjected to cruel and unusual punishment.”

60The Supreme Court of Canada has established a “two-stage” process for constitutional challenges to mandatory minimum sentences, and, has noted that a “contextual and comparative analysis is required.”²⁴

61At the first stage, the sentencing judge must consider what would be a fit and proportionate sentence for this offender, applying all the usual principles of sentencing, but without considering the mandatory minimum sentence. At this stage, the sentencing judge should also consider what would constitute a fit and proportionate sentence for a hypothetical offender in a reasonable foreseeable scenario. Thus, there are actually two steps in this first sentencing stage – one determining the fit sentence for the offender before the court, and the other going through the same exercise for what the court finds to be a reasonable foreseeable scenario.

62At the second stage, the judge must compare the sentence determined at the first stage to the mandatory minimum and determine if any disparity meets the constitutional standard of “gross disproportionality.”

63In Senneville, the Court emphasized the importance of the reasonable hypothetical case in this exercise, referring to it as “indispensable to effective constitutional review, because the objective is to ensure that it applies to all citizens, and not only to the person in a position to challenge the validity of a law.”²⁵ This position dovetails with the Court’s other pronouncements that constitutional exemptions are not appropriate remedies for laws found to be unconstitutional, as it leaves laws in place where they can affect other people who may not be able to mount a similar challenge.²⁶ In Senneville, the Court quoted with favour the following ruling by McLachlin C.J. in Nur:

Refusing to consider reasonably foreseeable impacts of an impugned law would dramatically curtail the reach of the Charter and the ability of the courts to discharge their duty to scrutinize the constitutionality of legislation and maintain the integrity of the constitutional order. The protection of individuals’ rights demands constitutional review that looks not only to the situation of the offender before the court, but beyond that to the reasonably foreseeable reach of the law. Testing the law against reasonably foreseeable applications will prevent people from suffering cruel and unusual punishment in the interim until the mandatory minimum is found to be unconstitutional in a particular case.

Refusing to consider an impugned law’s impact on third parties would also undermine the prospect of bringing certainty to the constitutionality of legislation, condemning constitutional jurisprudence to a wilderness of single instances. Citizens, the police and government are entitled — and indeed obliged — to know what the criminal law is and whether it is constitutional. Looking at whether the mandatory minimum has an unconstitutional impact on others avoids the chilling effect of unconstitutional laws remaining on the statute books.²⁷ [Emphasis added in Senneville.]

64There has been some controversy in past case law with respect to the nature of what would constitute a “reasonable hypothetical” for purposes of comparison in the s. 12 analysis. The Supreme Court in Senneville sought to resolve that unsettled law. While recognizing that the term “hypothetical” and “scenario” had been used interchangeably in the past, the Court recommended the use of the expression “reasonably foreseeable scenario” going forward. This terminology, it was suggested, would better reflect that the exercise is essentially a question of statutory interpretation in order to determine the reach of the law. The search for the foreseeable scenario is not based on fanciful speculation, but rather on judicial experience and common sense.²⁸

65The term “scenario” is meant to encompass both the circumstances of the commission of the offence and the personal characteristics of the accused.²⁹ I note that this neatly encapsulates the principle of proportionality (which the Supreme Court has emphasized to be an overriding general principle), by focusing on both the offence and the offender.

66The circumstances of the offence must be reasonably foreseeable and must clearly be captured by the minimum conduct caught by the offence. There is no point in considering hypothetical conduct which might arguably not fall within the offence at all. A scenario is “reasonably foreseeable” if it is not “fanciful, outlandish, far-fetched, merely speculative, or marginally imaginable.”³⁰ The Supreme Court has endorsed in many cases that it is useful in these situations to turn to facts from reported cases in considering what can said to be “reasonably foreseeable.” After three decades as a trial judge in Toronto, I am constantly amazed at the bizarre situations that find their way before the courts. The expression that “truth is stranger than fiction,” (sometimes expressed as “you can’t make this ‘stuff’ up”) is demonstrated day after day in our courts. Judicial experience teaches us that there is little limit to what can happen in real-life situations before the courts. These real-life experiences in cases before the courts demonstrate that to truly capture situations that might well arise, a “reasonably foreseeable scenario” must be something beyond the typical or average factual scenarios seen every day in courts across the country.³¹

67As stated in Senneville, the “reasonably foreseeable scenario” is not required to be “common” or “likely,” nor is it required to be linked to the factual situation before the court. To construe the test so narrowly would not test the true reach of the impugned law.³²

68The “reasonably possible scenario” should also contemplate offenders who have individual characteristics that are foreseeable for offenders in Canadian courtrooms. In Hill, the Court confirmed that “characteristics that are reasonably foreseeable for offenders in Canadian courtrooms, like age, poverty, race, Indigeneity, mental health issues and addiction, should not be excluded from consideration.”³³ The Court in Hill also recognized the validity of a reasonably foreseeable scenario involving characteristics that could affect moral blameworthiness and proportionality, holding:

Parliament is taken to know that the mandatory minimum it selects applies to “everyone”, just like the s. 12 right against cruel and unusual punishment. That means all people, regardless of their personal characteristics, are to benefit from the protections of s. 12. Canada is a large and diverse country and people will have personal characteristics which may aggravate or mitigate their moral blameworthiness. It is appropriate that the effects of a mandatory minimum be scrutinized based not only on the reach of the law and the length of the sentence selected, but also on the breadth of the population to which it is made to apply.

Including immutable personal characteristics in hypothetical scenarios strengthens the analytical device by helping courts explore the reach of the mandatory penalty. Individuals with reduced culpability may find themselves subject to mandatory minimum penalties. It is possible Parliament set penalties with a certain offender in mind without fulsome consideration of how the mandatory penalty may apply to offenders with reduced moral blameworthiness due to their disadvantaged circumstances, including marginalization or systemic discrimination.³⁴

[Emphasis added.]

69Although individuals with developmental disabilities are not specifically mentioned by the Court in Hill, they clearly fall within the same category of individuals who may have reduced culpability due to immutable characteristics that are easily foreseeable in our society.

70With these principles in mind, I turn to a consideration of the fit and appropriate sentence, both for D.C. and for a hypothetical offender in the reasonably foreseeable scenario proposed by the defence.

3. Stage One - Fit and Appropriate Sentence for D.C.

Aggravating Factors

71There are many aggravating factors with respect to these offences, the most serious of which are centered on the victim. Although the counts on the indictment date from when D.C. was already 18, and his sister was therefore 14, it is an agreed fact that they began when she was only 12 and it is relevant to take that into account on sentencing. She was a particularly vulnerable victim due to her age and the fact that she was living in the family home where D.C. always had access to her. She also has an intellectual disability, and although I have no information on the degree of its severity, there can be no doubt that it increased her level of vulnerability. This was a brother/sister incest. He is four years older than she is, and although not a parental figure, was nevertheless a family member she should have been able to trust. Not only that, but she was violated in what should have been her places of safety – her own room, her own home, and the family cottage. Moreover, there were numerous incidents over the years, not one isolated occasion. Sometimes, these incidents were forceful and painful, and continued over her protestations that it hurt.

72I conclude from the agreed facts that D.C., at least to some degree, knew that having sex with his sister was wrong. He used a condom most of the time, particularly during the later years when his sister was older. Other times, when he did not use a condom, he would go into the bathroom and ejaculate, presumably to avoid impregnating his sister. He was surreptitious, looking for chances to find his sister alone, and stopping his assaults if it sounded like a parent had arrived home. He also disposed of used condoms, thereby ensuring they would not be discovered by his parents.

73I also recognize that incest is one of the most heinous of sex crimes, with profound and typically long-lasting effects. The impact on the victim in this case is not just likely, it is real, as is evidenced by the victim impact statement filed. Although she is now an adult, she feels unready to be in a relationship “anytime soon.” She feels uncomfortable with anybody sitting too close to her or physically touching her, particularly men. Both her eating and sleeping have been affected by the stress “from [her brother’s] actions, the police investigation, and the whole legal process.” She feels disconnected from her body and wears a chest binder. She also describes that her mind is “racing with multiple thoughts, including sometimes, flashbacks.” She dreads accidentally meeting her brother some day and the very idea of it “makes [her] feel stressed and anxious.” I recognize, as is well-established in the literature and case law, that these impacts are likely long-lasting and possibly permanent.

74As is often the case with violence and betrayal within families (and, in my view, incest by its nature encompasses both), the impact goes beyond the two individuals directly involved. This entire family has been devastated. Since his arrest, D.C. has been released on bail with a condition that he live with his grandmother. There is, understandably, a non-contact clause with respect to his sister. His sister continues to live with her parents and other brother in the family home. These conditions have made family gatherings and relationships difficult.

Mitigating Factors

75Notwithstanding the seriousness of the offences committed by D.C. and the significance of their impact, there are also many mitigating factors. Although there was no guilty plea, this case was not contested on its facts, but rather proceeded only on the constitutional issues raised. The complainant was therefore spared the ordeal of having to testify. This was not merely a tactical move by the defence; the constitutional issues raised are legitimate and important. D.C. also did not challenge the content of the statement he gave to police, although not conceding it was voluntary. At the end of the sentencing hearing, I asked D.C. if he wanted to say anything and he took the opportunity to say that he felt sorry for what he did to his sister and his family and that he was trying to improve himself. He recognized he had caused pain and trauma to his sister and said it would never happen again. It seems to me that D.C. now has insight into what he did, and the pain he caused. I found him to be genuinely remorseful for his actions. I therefore think it appropriate to consider this case in the same manner as a situation akin to a guilty plea and a showing of true remorse.

76D.C. has no record of any kind. As of the date of sentencing, he is 26 years old, but these offences go back to his late teens and early twenties. He is therefore properly considered a youthful first offender. Typically, in the absence of a mandatory minimum sentence, jail is considered to be a punishment of last resort for a person such as this.

77Life has not been easy for D.C. As a result of his disability, he was bullied at school. Sometimes he acted impulsively in a way that was socially inappropriate, or because he was urged on by other students who knew better, resulting in his getting beaten up or doing damage for which he was blamed. His father described him as being a “punching bag for some of his school mates.”

78Notwithstanding these challenges in life, D.C. finished high school. He got a driver’s license. His father found him a temporary part-time summer job at his own workplace, which eventually turned into permanent employment. D.C. has maintained that employment throughout, working in shipping and receiving and driving a forklift. His father wrote that his son is a “good worker” and that “management is pleased with his work and looks forward to many more years with him.” His grandmother (with whom he has lived while on bail) also commented on his “excellent work ethic” and said he has behaved well while on bail and not gotten into any trouble. She observed that it has been difficult for D.C. to be away from his family, although he sees his father occasionally at work. She commented that it is important for him to have a routine “that will provide stability and be challenging enough to lead to personal growth.”

79D.C. has experienced, and will continue to experience, collateral consequences from these incidents, particularly with respect to social isolation and the loss of contact with his family. These, of course, flow directly from his own wrongdoing, the nature of the offence, and the reasonable terms of his bail. However, as I will deal with in more detail later, the collateral consequences of a jail sentence would be profound, and perhaps permanently damaging (see paras. 94-98 below). This is appropriately treated as a mitigating factor on sentence.

80The family, understandably, has chosen to shelter and protect the complainant, who is truly the victim here. However, it is clear from the statements provided by D.C.’s mother, father, and grandmother, that they care deeply about him, notwithstanding these past tragic assaults. He is described consistently as being “helpful” and hard working. His father describes him as a “gentle person” who “just wants to make people happy.” His mother fears that if her son is sent to jail he will experience the same kind of bullying he was subjected to in high school, perhaps worse. She closed her letter by stating, “Please take his history into account when sentencing my son. He needs help, not severe punishment.”

Restraint

81My first step with a youthful first offender is to determine whether a sentence other than imprisonment is necessary in the circumstances of the case. I am required to consider this by both ss. 718.2 (d) and (e) of the Criminal Code. The question then is whether there are less restrictive sanctions that could be imposed that would achieve the principles of sentencing and which are appropriate in the circumstances. What is “appropriate” must include the offence itself and the impact on the complainant. It also dovetails with one of the purposes of sentencing which is to protect the public, including removing the offender from society where “necessary”.

Denunciation, Deterrence, and Rehabilitation

82In sentencing any individual, the court is required to consider the principles of rehabilitation, denunciation, and deterrence. Deterrence includes both deterring this particular individual from re-offending (specific deterrence) and deterring others who might be tempted to commit similar offences (general deterrence). Rehabilitation and specific deterrence focus primarily on the offender; denunciation and general deterrence focus more on the seriousness of the offence and the danger to the community. I will address both categories.

83Incest is a hideous crime. General deterrence and denunciation clearly pull towards a stiffer sentence, including jail time.

84However, the principles of specific deterrence and rehabilitation pull in the opposite direction. This young man does not need to be sent to prison to “learn his lesson” or to deter him from committing this kind of offence again. He is contrite and resolved not to re-offend in this manner. In that regard, nothing is served by putting him in jail. Rehabilitation pulls even more strongly away from imprisonment. What D.C. needs at this juncture is education and guidance. He is obviously capable of learning, and he is a person who likes to please others. He will benefit greatly from counselling about issues of sexuality and consent, as well as family parameters. I doubt very much that he will learn these things within the confines of a federal penitentiary, where other inmates are simply not like him, and where courses would not be geared to his cognitive age. Moreover, the extreme tension and anxiety that will no doubt be triggered for him in that population are not conducive to learning, and particularly not conducive to learning about things like respect for others, kindness, personal boundaries, consent, and the like. I see great potential for rehabilitation with D.C. and I fear that sending him to prison would endanger, rather than enhance, his prospects for the future.

Parity in Sentencing

85As much as is possible, courts should strive to achieve parity in sentencing, such that similar offenders receive similar sentences for offences committed in similar circumstances. It is important that sentences have some consistency and are not seen to be arbitrary. However, this is an aspirational goal, not one that is easily achievable, because in real life, no two offenders are ever alike, and even the same offence can be committed in vastly different ways and with different outcomes. However, it is necessary to look at the range of sentences imposed for crimes of this nature to reflect the principle of parity.

86Before undertaking that review, it is important to note that, historically, sexual violence against children did not attract the severity of sentence that is now the case. In 2020, the Supreme Court of Canada’s land-mark decision in R. v. Friesen³⁵ recognized that courts in the past have failed to recognize the nature and extent of the harm, including psychological harm, inflicted on child victims of such abuse. While declining to impose a specific range of particular offences, the Court in Friesen held that mid-single digit penitentiary terms for sexual offences against children should be considered normal, and that upper-single digit and double-digit penitentiary terms should not be viewed as unusual, nor reserved for exceptional circumstances.³⁶ In Friesen, the Court listed a number of factors that should be considered aggravating, including: the abuse of a position of trust; sexual violence that is not isolated but repeated on multiple occasions and longer periods of time; and the particularly young age of the child victim. In light of Friesen, relatively lenient sentences for incest imposed prior to 2020 must be re-evaluated. The sentencing range referred to in Friesen was adopted from the decision of the Court of Appeal for Ontario per Moldaver, J.A. (as he then was) in his 2002 decision in R. v. D.(D.). Thus, at least in Ontario, cases prior to 2002 are also unlikely to be of considerable guidance.

87The Crown relied on the following decisions to support their position that a sentence of seven years is appropriate:

R. v. V.H., 2024 ONCA 770, aff’g 2022 ONSC 5668 – A 12-year sentence imposed by the trial judge was upheld after the offender was convicted of incest, criminal harassment, sexual exploitation, making child pornography, and possession of child pornography. The complainant was the offender’s half-sister, but he was 16 years older than her. They shared the same father, and through him, an Indigenous heritage. The sexual assaults started close to the complainant’s 16th birthday and continued for 18 months. The conduct was more severe than in the case before me – violent penetrative sex, during which she was bound, gagged, and beaten, and in addition the offender possessed thousands of images and videos of child pornography. The trial judge commented on the offender’s “profound lack of insight as to the wrongness of the harm” and the limited weight she was prepared to give to an expert opinion that the accused was likely a low risk to re-offend. The main distinguishing factors are: the difference in the age gap (16 years, rather than 4); the absence of remorse or insight (as opposed to an admission of guilt and remorse); the related prospects for rehabilitation; the degree of violence; and the diminished moral blameworthiness of D.C. as compared to this offender.
R. v. T.S.H., 2019 ONSC 2644 – The offender was convicted of incest with one sister on isolated dates when she was between the ages of 16 and 26 and another sister when she was 20-21. These offences occurred between 1969 and 1983 (36-50 years before the date of sentencing). The offender was 70 years old at the time of sentencing and had numerous medical ailments and also dementia (which was worsening). Aitken J. sentenced him to three years in prison (two years for the incidents with respect to one sister and one year for the assaults on the other sister). She noted that but for the offender’s medical condition (which would make any time spent in prison particularly hard for him), she would have sentenced him to a global sentence of four years. I note that the disabilities the offender had at the time of sentencing were not present at the time of the offences. It was a contested trial and the offender showed no remorse for his conduct. The trial judge noted in her sentencing reasons (at para. 32) that, “T.S.H. persisted with his attitude that he was entitled to have sex with his sisters when the opportunity arose because, after all, ‘it was just sex’.”
R. v. T.C., 2019 ONSC 1910, aff’d 2020 ONCA 469 – O’Bonsawin J. (as she then was) imposed an 8-year sentence on an offender for incest and other forms of assault on his sister, who was four years his junior. The abuse started when the victim was only four years old and continued until she was 16-17. The offender had ADHD and a learning disability. This was a contested trial with no expression of remorse. There is no indication that the disabilities of the offender had an impact on his moral blameworthiness. The conduct was far worse than in the case before me. It included forcing foreign objects into the victim’s vagina (e.g. a hairbrush and a doll) and causing many yeast infections over the 13-year history of abuse. I will not detail all of it, but one paragraph from the expert report provides some insight as follows:

Based on the description of the acts perpetrated by [T.C.] with respect to the index offences in the reasons for judgment, in my opinion there is evidence he was deriving sexual arousal at the humiliation, pain and suffering endured by his sister and not just over the sexual intercourse itself. The acts suggestive of this pattern of arousal were repeated over years, given the description in court. As described, [T.C.] inflicted gratuitous pain on what he would have known was a non-consenting person by, for example, inserting hard objects in her vagina, and the pain she suffered was not simply due to his efforts to force her to submit to sexual intercourse. His repeated defecation on the victim, including into her mouth while she was sleeping, may be suggestive of coprophilia (sexual arousal derived from the act of defecation), but given the overall picture appears part of a pattern of inflicting humiliation on his sister for sexual gratification. Ejaculating on her dolls appears also to be part of the pattern of causing suffering to his sister and deriving sexual pleasure over behaviours that go beyond merely forcing a sexual act upon her and are instead designed to cause her psychological suffering.

88The Crown points out that two of these decisions are from 2019 and that the sentences would likely be higher now in light of Friesen. I do not agree. O’Bonsawin J. (in T.C.) was fully aware of D.(D.) and cited from it extensively, including the paragraph from which the Court in Friesen adopted their suggested sentencing ranges. Aitken J. (in T.S.H.) did not conduct an extensive review of the case authority or consider sentences imposed in other cases, but must be taken to have known about the decision in D.(D.). The main reason for the comparatively lower sentence in T.S.H. is the impact prison would have on the offender given his age and health issues.

89For purposes of comparison, I note that all three cases cited are even more egregious on the facts, do not involve what was essentially a guilty plea as is the case here and did not have the additional mitigating factor of genuine remorse. Also, none of them involved offenders with an intellectual disability that had a direct impact on moral blameworthiness.

90The defence referred to the following cases:

R. v. R.B.W., 2023 NSCA 58 – The Nova Scotia Court of Appeal upheld a conditional sentence of two years less a day for a father who committed incest with his 23-year-old daughter. There was also a previous act of incest when the daughter was 19-20 years old. Both the father and the complainant daughter had intellectual disabilities. The mandatory maximum did not apply because the daughter was over the age of 16. The offender pleaded guilty and was remorseful. However, as a result of the latter incident, the complainant was impregnated and gave birth to a child who had serious medical complications and significant developmental delays. Because of her own intellectual limitations, the victim was unable to care for her baby and the baby was placed in foster care, which was also traumatizing for the victim. The offender was an African Nova Scotian who had suffered systemic discrimination as a child and youth and himself been sexually abused as a child. The trial judge had considered Friesen because of the vulnerabilities of the complainant even though her chronological age was greater than 16. However, the trial judge nevertheless concluded that two years was the appropriate sentence and that it could be served conditionally in the community. This was incest by a father with his daughter, which is typically sentenced more severely than incest between siblings. Also, the birth of the disabled child as a product of the incest is an aggravating factor. However, the actual incidences of abuse were far fewer than is the case here and the victim was over the chronological age of 16.
R. v. S.M.C., 2021 QCCQ 3498 – The trial judge imposed a suspended sentence with 3 years’ probation for a 19-year-old Indigenous offender who had sexual intercourse with his 18-year-old sister. The Crown had sought a 9-month sentence. Although the decision was in 2021, the Supreme Court of Canada decision in Friesen was not considered, perhaps because the victim was over the age of 16.
R. c. M.R.M, 2019 ONCS 297 – Labrosse J. sentenced the offender to five years imprisonment for 3-5 incidents of incest with his younger sister when she was between the ages of 12 and 14 and he was between 18 and 20. The offender was described as being “immature.” The sister became pregnant and (at the age of 14) delivered a baby which had “numerous special needs and health problems.” The offender had no criminal record, pleaded guilty, and expressed remorse. However, his sister was not spared having to testify as she was called as a witness in the Gardiner hearing. There were serious immigration consequences for the offender and he had a common-law partner and child who would be left without support. This decision was prior to Friesen, but D.D. was considered. The principle distinguishing features are: the pregnancy and childbirth (which are aggravating); the absence of any intellectual disability; and the fewer number of occurrences. I will return to this decision later in my consideration of s. 12 of the Charter and whether I am bound by this decision based on stare decisis.
R. v. C.M.S.M., 2019 NBPC 14 – The trial judge found that the mandatory minimum sentence violated s. 12 of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html> (but this is a decision of a provincial court judge in New Brunswick and clearly not binding on me). The offender was the half-brother of the victim. He was 20 years old, and she was 13. There was only one incident of sexual intercourse, which lasted for 30 minutes, and the offender was heavily intoxicated by alcohol and drugs at the time. The offender was himself a victim of sexual violence as a child. The sentence imposed was three years’ probation. The fact that only one incident of incest was involved is the main distinguishing factor.
R. v. Y, 2012 ONSC 3066 – The global sentence imposed in this case was three years imprisonment, of which two years was allocated to a charge of incest when the accused was 25-27 and the victim (his sister) was 16-18. The accused plead guilty to the incest charge, but maintained his innocence with respect to multiple counts of: sexually abusing his niece (when she was 17-19 and he was 46-48); and sexually abusing his great-niece (when she was 14-16 and he was 71-73). The accused was 74 years old at the time of trial and had untreatable terminal cancer as well as other health issues. The sentence imposed was heavily affected by the impact it would have on his health. I find it to be of little precedential value for purposes of this case.
R. v. M.J.W., 2011 NSPC 33 – The 21-year-old offender was sentenced to an 18 month conditional sentence after entering a guilty plea to incest on three occasions with his 15-year-old sister. The case is dated and was prior to the mandatory maximum sentence. The trial judge, while recognizing that consent was not a defence to incest, nevertheless noted that the sex between these siblings was “consensual” and that this was relevant to a determination that the older brother was not in a position of trust. The trial judge was also of the view that the range of sentence for incest was from a suspended sentence to 5 years imprisonment. I note that this is a decision of a provincial court judge from another jurisdiction. I find this case to be of no precedential value for present purposes.
R. v. L. (C.O.), 2010 ONSC 3792, 257 C.C.C. (3d) 562 – Code J. imposed a sentence equivalent to 3.5 years on a 25-year-old offender who had sexual intercourse with his 16-year-old half- sister. The offender had a lengthy record, including for assault, denied responsibility, and showed no remorse. The offender and the victim shared the same father, but had never lived together, although they did have some contact and were said to be close. There were two acts of sexual intercourse forced on the complainant, the first starting when she was asleep. The trial judge commented on the deep emotional scars sustained by the complainant and the damage done to the entire family. He distinguished some of the cases involving parental incest with a child and decisions in which there had been prolonged abuse and much younger victims. Having determined the range to be 3-5 years, he sentenced the offender near the bottom of that range. This decision was after D.(D), but does not refer to it, although I believe the trial judge can be taken to have known about it. There may be some doubt as to the accuracy of the 3-5 year range in current times. There were fewer incidents than in the case before me. However, there was no admission of guilt and the offender had a criminal record. The offender did not have a disability, which is a significant distinguishing factor.
R. v. M. (W.W.) (2006), 2006 3262 (ON CA), 205 C.C.C. (3d) 410 (Ont. C.A.) – The accused was convicted following a jury trial of two counts of incest involving two of his half-sisters. The trial judge sentenced him to four years in prison, which was upheld by the Court of Appeal. The offender had sex with one of his half-sisters when he was 16 and she was 9 and this continued on multiple occasions over a period of two years. The abuse of the other half-sister began when she was 8 and he was 16 or 17 and continued with many incidents for four years. For both girls, the offender was their oldest brother and in charge of the house while their single mother was working. Thirty years passed before the sisters went to the police with their complaints. By then, the accused had been a hard-working member of the Barrie Police Force for over 20 years, had no criminal record, and had led an exemplary life. The case is somewhat dated, but the Court of Appeal upheld the sentence just four years after its own decision in D.D., which was later relied upon by the Supreme Court in Friesen in determining ranges. For purposes of comparison, the assaults continued for a similar period of time, and included numerous incidents of abuse by a trusted older brother. On the other hand, there were two victims (instead of just one as is the case before me) and the offender did not have a disability that affected his level of moral blameworthiness.
R. v. E.W.F., 2006 NLTD 91, 258 Nfld & PEIR 88 – The 48-year-old offender was sentenced to 18 months in prison after pleading guilty to incest with his adult sister. He had previously served time in a penitentiary for sexually assaulting a young person. There was one incident of intercourse in which the offender essentially raped his sister while she was asleep. Both of them were drunk. He was immediately remorseful and when his sister called him to confront him the next day, he apologized and told her to contact the police if she thought it necessary. When arrested, he confessed to police. The offender is described in the decision as being “a single, disabled male of Inuit descent” but the nature of the disability is not revealed. He had a tragic childhood after his father was shot and killed and his mother was charged with the shooting (although later acquitted). All the children in the family were placed in foster care and did not see each other or their mother for 25 years. There are very limited parallels between that case and this one, particularly given the ages of the offender and victim and the fact that it was one isolated incident. There is not enough information about the offender’s disability to determine if it affected his moral blameworthiness. I do not find it to be applicable to the case before me.

91There were five other cases cited by the defence that I will not deal with in any detail.³⁷ The sentences range from a one-year sentence to suspended sentences with probation. Three of them are from the 1990s and two from the 1980s. This was prior to D.(D.) and long before Friesen. Sentences at that time for sexual assaults against children generally were far lower than is the case today. Some of those decisions are also not relevant on their facts. I have reviewed them but do not find them helpful in determining the appropriate sentence in the case now before me.

92The extensive and thorough review of the case law by both counsel has failed to uncover any incest case in which the offender has similar characteristics to the offender now before me. This makes a comparative analysis very difficult. There are cases in which the conduct was similar, but that is only one side of the sentencing analysis which is required to focus not only on the seriousness of the offence, but also the moral blameworthiness of the offender.

Impact of Disability on Sentence

93I see D.C.’s disability as impacting this analysis in two important ways: (1) because of his disability, serving time in prison would be extremely and uniquely difficult for him; and (2) the nature of his disability is directly tied to the extent of his moral blameworthiness, which leans towards a much reduced sentence than would otherwise be the case.

94With respect to the first issue, there is some limited guidance in the case law. In T.S.H. (cited by the Crown), Aitken J. held that a 4-year global sentence would have been appropriate (for historical incest with two sisters who were over 16 at the time), but reduced it to 3 years due to various physical ailments and worsening dementia in the 70-year-old offender. The trial judge in R. v. Y did not specify what the sentence would have been but for the disabilities of the 74-year-old offender, which included terminal cancer for which he was likely to be on palliative care while in hospital. However, the global sentence was 3 years, of which 2 years was allocated to the historical incest charge (when he was 25-27 and his sister was 16-18). He was also convicted of sexually assaulting his niece when she was 16-18 and he was in his 40s, and his great-niece when he was in his early seventies. Clearly the sentence would have been greater than 3 years, but for the illness and age of the offender. However, it is impossible to say what the deduction was for that factor.

95The Court of Appeal for Ontario recently reaffirmed that collateral consequences of imprisonment for an individual must be considered in determining an appropriate sentence. Tulloch C.J. set out the principles to be followed as follows:

At the outset, I restate the settled principles governing collateral consequences which Justice Moldaver defined in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, building on the Supreme Court’s earlier decision in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739.

First, collateral consequences humanize and individualize sentencing by accounting for its effects other than the criminal sanction itself: Pham, at para. 19, quoting R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 158; see also Suter, at para. 48. These impacts can be severe. In Pham’s words, “[p]eople lose jobs; families are disrupted; sources of assistance disappear,” which “make[s] the rehabilitative path harder to travel,” hinders “future re-integration,” and can reduce the need for denunciation and deterrence: at para. 12 (quotation omitted); see also Suter, at para. 48 n.2. Likewise, Suter underscored that “a particular sentence [can] have a more significant impact on the offender because of his or her circumstances”: at para. 48. Suter thus affirmed cases which recognize the heightened impact of collateral consequences on people who already face marginalization and disadvantage, including due to financial insecurity, mental health challenges, and precarious immigration status: at para. 56 (citing cases).

Second, considering collateral consequences is mandatory, not optional. As Suter explained, “relevant collateral consequences must be taken into account” because they “enable[] a judge to craft a proportionate sentence”: at paras. 46, 48 n.3. Suter adopted this rule because whether a sentence is proportional to the gravity of the offence and the degree of responsibility of the offender as s. 718.1 of the Criminal Code requires depends on its impact on the defendant in addition to its length. Since collateral consequences increase the impact on the defendant, they are integral to proportionality and failure to consider them may “render[] a given sentence unfit”: at para. 48; see also R. v. Hills, 2023 SCC 2, 477 D.L.R. (4th) 1, at paras. 135-36.

Third, the law approaches collateral consequences generously, not restrictively. Suter defined them broadly to encompass “any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender,” including “physical, emotional, social, or financial consequences”: at para. 47 (quotation omitted). …³⁸

[Emphasis added.]

96The principle of collateral consequences has been recognized in cases involving offenders with developmental or intellectual disabilities. For example, in R. v. D.N., Pratt J. took into account the intellectual disability of an offender in a sexual assault case, noting that he was very trusting would be vulnerable to exploitation and mistreatment by other inmates which would “make custody disproportionately difficult, if not dangerous.” While acknowledging that a sentencing range of 3-5 years would be appropriate in the circumstances, the trial judge imposed a conditional sentence of two years less a day because of the collateral consequences.³⁹

97In R. v. Warren, Pomerance, R.S.J. (as she then was) found the offender met the criteria for a dangerous offender designation after a conviction for arson and a long prior criminal record. However, he had multiple disabilities (including an intellectual disability) as a result of which she held that placing him in a federal penitentiary for an indeterminate sentence would result in a breach of his rights under s. 12 of the Charter. She therefore ordered that he be held in a psychiatric hospital rather than a penitentiary. As part of that analysis, Pomerance R.S.J. noted (at para. 140):

For example, CSC tends to adopt a “one-size-fits-all” approach. According to Dr. Bradford, this type of approach does not work when dealing with a person whose IQ is 55. Developmental delay imposes very real challenges that are difficult to meet in a penitentiary. People with developmental delays are very different than those with a serious mental disorder such as schizophrenia. Treatment programs have to be adapted. The benefit of a hospital environment is that there may be wards dedicated to those who are developmentally delayed, allowing not only specialized treatment, but the possibility of interaction with similarly situated individuals. Those who are developmentally delayed are vulnerable to abuse. Within the hospital setting, there is less potential for intimidation and violence at the hands of other inmates. ⁴⁰

98In my view, the impact of incarceration in a penitentiary will be particularly harsh for D.C. He will have a difficult time functioning there. It is designed for, and populated by, adults who have committed serious crimes. He does not fit this setting. He has only ever lived with his parents and siblings, or with his grandmother with whom he is very close. He functions cognitively at the level of a 9 to 12-year-old. Because of his disability, he has a difficult time adapting to new surroundings. He is likely to be subjected to extensive bullying (which he suffered from all through school) and perhaps worse. Because of his disability, he will also be suggestible to the influence of fellow inmates, potentially leading to conflict with prison authorities as well as other inmates and reflecting D.C.’s experience in high school. Given that this is his first offence, this kind of imprisonment is particularly less appropriate for him. The case law supports a significantly lower sentence based on this factor alone. This is a factor that relates to both the length of the sentence (if it is to be served in a prison) and where that sentence should be served.

Proportionality

99I was not referred to, and am not aware of, any cases dealing directly with the impact of a developmental disability on the moral blameworthiness of an offender and how that factors into sentencing. However, the Supreme Court’s decision in I.M. is useful by way of analogy. In that case, the Supreme Court dealt with the test to be applied when determining whether a person under the chronological age of 18 could be sentenced as an adult under the Criminal Code. The Court emphasized that the issues of moral blameworthiness and the seriousness of the offence are distinct and separate concepts and must be analyzed separately.⁴¹ In my view, the same rationale must be applied in considering moral blameworthiness as part of the proportionality principle under s. 718.1 of the Criminal Code.

100There is no question that incest is a serious offence. In this case, it was not incest by a parent (which would be even more egregious), but there is still a relationship of trust between a sister and her older brother. Also, the fact that she was under the age of 16 makes the offence even more serious. However, this is only one half of the proportionality analysis. The seriousness of the offence must be balanced against the moral blameworthiness of the accused.

101Underlying the sentencing provisions of the YCJA is the rebuttable presumption that anyone under the age of 18 lacks the moral blameworthiness to be sentenced as an adult under the Criminal Code. Due to his chronological age, D.C. does not have the benefit of that presumption. However, the evidence before me establishes that his level of moral reasoning is below that of an 18-year-old. Indeed, it is far below that level. That puts him in a similar position to children under the chronological age of 18 who are protected by the presumption of reduced moral blameworthiness.

102The defence does not suggest that D.C. should have no responsibility at all for this offence, notwithstanding the opinion of Dr. Casati that his level of cognitive functioning is at the level of a 9 to12-year-old. She testified that this assessment is based on his overall thinking and reasoning abilities, even though he can still have good adaptive skills in some areas. Notwithstanding his limitations, D.C. is capable of learning and has acquired considerable knowledge. He is also less impaired in some areas, compared to others. As a result, he has been able to maintain full-time employment and travel on public transportation. However, testing showed that his level of executive functioning was significantly impaired in multiple areas, including decision-making, inhibiting conduct (i.e. the ability to inhibit or resist conduct rather than acting on impulse), and the ability to monitor his own social conduct. Dr. Casati described D.C. as being “sexually and intellectually immature” and that, intellectually, he is “not functioning at an adult level.”

103I have stated before, but it bears repeating, D.C. is not a child. However, his capacity for moral reasoning is not akin to that of an adult. In I.M., the Court held that it would be a breach of the Charter rights of an offender to sentence him under the Criminal Code unless it could be shown that he had a level of maturity and moral reasoning akin to that of an adult. In the course of argument, and in response to a question from me, the Crown in this case very fairly conceded that if D.C. had been tried under the YCJA, the Crown would not be able to establish that his level of maturity was akin to that of an adult and that he could not therefore be sentenced as an adult under the Criminal Code. In my view, it would be contrary to D.C.’s Charter rights to ignore his capacity for moral reasoning when considering the appropriate sentence for this offence and, in particular, when weighing the seriousness of the offence against the moral blameworthiness of the offender. His level of moral reasoning capacity is far below that of a typical 18-year-old. It would be improper, indeed unlawful, to punish him based on a level of moral blameworthiness of which he is not capable due to his disability.

Conclusion: Fit Sentence for This Offender

104D.C. is charged with several offences, but all of them relate to sexual interactions with his younger sister. The most serious of these is the charge of incest for the period when the complainant was under the age of 16. This is the offence that carries with it the mandatory 5-year minimum sentence. However, there was a pattern of conduct over a continuous period of time, all involving the same complainant, and varying only with respect to her age and whether there was penetrative sexual intercourse. Both counsel before me treated the sentencing as being done on a global basis, with the focus being on the incest charge, and the other offences being considered under that umbrella as being part of the overall wrongdoing, and sentenced concurrently. Recently, in R. v. Oguntoyinbo the Court of Appeal for Ontario recommended a different approach, which had previously been endorsed by the Supreme Court of Canada in Bertrand Marshall.⁴² This process would involve sentencing each offence separately, determining whether they should be sentenced consecutively or concurrently, and then considering whether there should be reductions to reflect the totality principle. However, Paciocco J.A. recognized, at paras. 13-14, that much would depend on the circumstances of the individual case and specifically endorsed that the approach taken in other cases could still be used. One of the decisions specifically not overruled is the 1995 Court of Appeal for Ontario decision in R. v. Jewell, in which Findlayson J.A. wrote:

In my view, the appropriate approach in cases such as the two under appeal is to first, identify the gravamen of the conduct giving rise to all of the criminal offenses. The trial judge should next determine the total sentence to be imposed. Having determined the appropriate total sentence, the trial judge should impose sentences with respect to each offence which result in that total sentence and which appropriately reflect the gravamen of the overall criminal conduct. In performing this function, the trial judge will have to consider not only the appropriate sentence for each offence, but whether in light of totality concerns, a particular sentence should be consecutive or concurrent to the other sentences imposed.⁴³

105In my view, the approach taken by the Court of Appeal in Jewell best suits the circumstances of the analysis before me. However, since I would have found at the second stage of the approach suggested in Oguntoyinbo that all sentences should be concurrent, this would not affect the end result. Accordingly, I will focus the analysis on the appropriate global sentence, bearing in mind that the incest under the age of 16 is the most serious offence and that the other offences will be concurrent.

106Based on the decisions in Friesen and D.(D)., it appears that for the kind of sexual abuse at issue in this case, the typical sentencing range is in the upper single digits and double digits. I would consider sentences from 3-5 years as being in the middle digits. The lower range starts at 6 years and goes up from there. There are many mitigating factors for D.C. in this case quite apart from his disability, including his true remorse, his youth, the lack of a criminal record, and what was in substance and effect a guilty plea, sparing his sister from the ordeal of testifying. Just taking those factors into account (and ignoring the impact of the disability for the moment), I believe D.C. belongs at the bottom of the sentencing range. However, it is clear from the case law that even where a sentencing range is strongly recommended, it must not function as a straitjacket for the sentencing judge. The sentencing judge always has discretion to adapt to the particular circumstances of the case and the offender, and there will always be cases that will fall above and below the range.⁴⁴ In Friesen, the Supreme Court expressly refused to set a range, recognizing the significant variabilities in sexual assault cases and differing degrees of moral culpability.⁴⁵

107In my view, there are three factors that bring D.C. substantially below the six years: (1) the impact of prison on him as a result of his developmental disability; (2) the reduced degree of moral blameworthiness as a result of his disability; and, (3) his prospects for rehabilitation.

108I have already referred to the difficulties D.C. will likely experience in prison. The impact of being in prison is harder for some than it is for others. There are many cases, stretching back decades, in which sentences have been reduced to reflect that reality. For example, in R. v. Fireman, an Indigenous man shot and killed his cousin after a long night of drinking when both men were deeply intoxicated. A petty dispute escalated to a fight that resulted in the fatal shooting. Mr. Fireman was charged with manslaughter. He pleaded guilty and was sentenced to 10 years in prison. He was a hunter and trapper in the far north, and had lived all his life in a Cree community there. He was a 25-year-old with no criminal record and spoke no English. The Court of Appeal reduced his sentence to two years largely because of the particular harshness of the sentence given the personal circumstances of this young man, holding as follows:

With the greatest deference to the learned trial Judge, for the above reasons in my view the sentence is too severe and the appeal must be allowed. The determination of the appropriate quantum of sentence is not easy. The crime for which the appellant was convicted is a very serious one and, yet, the appellant has not by his previous conduct indicated that he is a dangerous person from whom society must be protected. Frankly, I think it is doubtful that prison is the answer, but that is our way. However, regard can properly be had to the institutions in our system and their flexibility for some guidance in determining and arriving at a proper conclusion. In this case, as the dominant consideration is the reformation and rehabilitation of this man and of course the respect of the community for our system, I think the appropriate sentence would have been two years less one day.⁴⁶

109More recently, the Court of Appeal for Ontario in M.M. recognized that the particular hardship of a medical condition could justify a conditional sentence, even for an offender who sexually assaulted children, although emphasizing this would be rare. M.M. was decided in 2022 and fully embraces the principle in Friesen, but is nevertheless a recognition that the particular hardship of prison because of the circumstances of the individual offender can significantly reduce a sentence below the ranges referred to in both D.(D.) and Friesen. The Court held:

Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility.⁴⁷

110Quite apart from the impact of D.C.’s disability on the harshness of imprisonment for him, his intellectual disability is inextricably connected to his moral blameworthiness for this offence. In my view, this has an even greater impact on the appropriate sentence in this case, reducing it substantially. The Supreme Court recognized this principle in Friesen and was careful to alert judges to not lose sight of moral blameworthiness and its role in fashioning the appropriate sentence for any given offender. The Court held:

These comments should not be taken as a direction to disregard relevant factors that may reduce the offender’s moral culpability. The proportionality principle requires that the punishment imposed be “just and appropriate . . . and nothing more” (M. (C.A.), at para. 80 (emphasis deleted); see also Ipeelee, at para. 37). First, as sexual assault and sexual interference are broadly-defined offences that embrace a wide spectrum of conduct, the offender’s conduct will be less morally blameworthy in some cases than in others. Second, the personal circumstances of offenders can have a mitigating effect. For instance, offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability (R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, at para. 64; R. v. Hood, 2018 NSCA 18, 45 C.R. (7th) 269, at para. 180).⁴⁸

[Emphasis added.]

111The two cases referred to by the Supreme Court in Friesen on this point provide useful comparators for purposes of this case. In Scofield, the British Columbia Court of Appeal considered the constitutionality of the one-year mandatory minimum sentence for sexual interference. The accused was a 22-year-old man with cognitive and intellectual disabilities. He had multiple sexual encounters with two different 15-year-old girls, including unprotected vaginal intercourse. The Court of Appeal upheld the trial judge’s decision that the cognitive impairment sufficiently reduced the moral blameworthiness of the offender such that imprisonment (rather than a conditional sentence) would be cruel and unusual punishment. The portion of the decision cited in Friesen states:

In this case, the judge placed considerable weight on Mr. Scofield’s personal circumstances; principally, Mr. Scofield’s reduced moral culpability in light of his cognitive impairment. It is important to stress that the judge decided that this case was an exceptional case because of those considerations. This analysis accords with the view expressed by Madam Justice Steel of the Manitoba Court of Appeal in R. v. J.E.D., 2018 MBCA 123, with which I agree:

75There is no question that an offender’s mental disability can be a significant mitigating factor and relevant to sentencing principles and objectives (see R v Adamo, 2013 MQBQ 225 at para 68; Okemow at para 107; and R v Ford, 2017 ABQB 322at paras 47-48). When sentencing individuals with cognitive limitations, deterrence and punishment assume less importance.

76This decreased emphasis on punishment and deterrence in these circumstances is consistent with the proportionality principle in section 718.1 of the Code. A sentence must be proportionate to not only the gravity of the offence, but also the degree of responsibility of the offender…

Personal circumstances of the offender are considered separately from the seriousness of the offence; they do not lessen its seriousness. Personal circumstances, where applicable, are considered independently to determine a proportionate sentence in light of the seriousness of the offence.⁴⁹

112The Nova Scotia Court of Appeal’s decision in R. v. Hood also involved the constitutionality of the minimum one-year sentence for sexual interference, but it arose in quite different circumstances. The accused was a former teacher who was diagnosed with Bipolar Mood Disorder. While in a manic state, she reached out to two former students she had taught in Grade 6, arranged meetings with them and engaged in various sexual acts with them while they were under the age of 15. She admitted the underlying acts at trial, but pleaded she was not criminally responsible under s. 16 of the Criminal Code. The trial judge found that the requirements of the defence were not met, which was upheld by the Court of Appeal. However, the trial judge then held that the one-year minimum sentence was unconstitutional as being cruel and unusual punishment for Ms. Hood and imposed a conditional sentence of 15 months, to be followed by 2 years’ probation. The Court of Appeal disagreed that the mandatory minimum was grossly disproportionate for the offences and offender in that case, but that it was unconstitutional when considered in light of a reasonable hypothetical case. The Court of Appeal then upheld the conditional sentence and probation ordered by the trial judge, stating:

Judge Atwood imposed a 15-month conditional sentence with strict conditions to be followed by two years probation. He was careful and thorough in his analysis. These were serious offences that must be denounced and deterred. At the same time, Ms. Hood suffered from mental illness which does not pardon her, but was a legitimate factor for the judge to consider on sentencing. She has already paid dearly; for example by losing her teaching career along with the inevitable public humiliation. Her sentence is punitive. It adequately addresses deterrence and denunciation. We would defer to it and allow it to stand.⁵⁰

113The Court of Appeal for Ontario has also addressed this issue R. v. A.L., a decision that post-dates Friesen. The accused and the complainant had been close friends. Both had suffered difficult and abusive upbringings and the accused had been in and out of foster care. The accused (who was then 19 years old) invited the complainant (then 16) to stay with her at her apartment. Over the course of the next four days, the accused took “revealing” photographs of the complainant, which they then posted on a website advertising the complainant’s availability for sexual services. Thereafter, the complainant engaged in paid sex work with several men who responded to the ads. After four days of this, the complainant left the apartment and went to the police. She told them about the ads and the paid sex work, but said that the accused had drugged her, threatened her, and forced her into sex work. The jury acquitted the accused on charges of administering a noxious substance and receiving a material benefit from prostitution. However, the jury convicted the accused of: trafficking a person under the age of 18; procuring a person under the age of 18; advertising sexual services; and publishing or possessing child pornography. These convictions were upheld on appeal. On sentencing, the trial judge (Bird J.) noted the sentencing guidance from Friesen with respect to the need to increase the severity of sentences for sexual offences against children, but nevertheless considered a conditional sentence of two years as appropriate due to the personal circumstances of the offender, including her mental disabilities, which impacted her moral blameworthiness. After referring to para. 91 of Friesen, Bird J. held:

In this case, I am satisfied that [the appellant’s] background, which includes her mental health challenges and developmental delays, were causally linked to her offending behaviour. Furthermore, I accept that [the appellant’s] own exploitation at the hands of older men also contributed to these offences. [The appellant’s] background must be looked at in its totality. Not only does she have significant intellectual delays that have impacted her ability to reason and understand the consequences of her behaviour, but she also had virtually no adult guidance or support growing up. To the contrary, she was sexually exploited by two older men. The breach of trust by the lawyer [sex with his client leading to disbarment] was particularly egregious.

[The appellant’s] own history of exploitation and her inability to obtain a basic education or employment undoubtedly contributed to her becoming involved in the sex trade industry herself. This put her in a position to encourage and assist [the complainant] to do the same, which is the conduct that forms the subject matter of these offences.⁵¹

114The Court of Appeal upheld the trial judge’s sentence, stating:

The Crown does not take issue with the trial judge’s findings about the appellant’s mental disabilities and their causal effect on her moral culpability for the offences. Nor does the Crown argue that the trial judge was not entitled to rely on paragraph 91 of Friesen. We do not accept the Crown’s submission that the trial judge inflated the appellant’s mental disabilities or her particular vulnerability to exploitation if incarcerated. The trial judge’s findings regarding the appellant’s limited intellectual capacity and her background supported the trial judge’s conclusion that the appellant was less morally culpable.⁵²

115Finally, I find that there is an excellent prospect of rehabilitation in this case. In my opinion, the double impact of D.C.’s intellectual disability (intensifying the harshness of a prison sentence and reducing his level of moral blameworthiness) when added to the prospects for rehabilitation and the other mitigating factors I have referred to above make a sentence of 18 months to two years appropriate in this case.

116The next issue is whether the sentence should be served in the community or in prison. But for the applicable mandatory minimum sentence, I would impose a conditional sentence of two years to be followed by three years’ probation. Although this brings D.C. within the supervision of the court for a longer period of time than would be the case if I imposed an 18-month jail term, I consider that to be warranted to maximize the opportunities for rehabilitation, which are fundamental to a fit sentence for this case. I am satisfied that the principles and purposes of sentencing can be met with a conditional sentence and that such a sentence in this case would not endanger the safety of the community. In my view, the conditional sentence option best supports specific deterrence and rehabilitation, and is sufficiently onerous to constitute denunciation and general deterrence.

117With respect to rehabilitation, my concern is that the hostile penitentiary environment will inhibit the prospects for D.C.’s rehabilitation. Programs designed for adults are simply not appropriate for D.C., and even if there was a program tailored to his needs, it would be difficult for him to focus on it amidst the misery that is likely to be visited upon him in a penitentiary. There are, however, significant resources available in the community, as referred to by Dr. Casati. D.C. is described as being pleasant, easygoing, and eager to please, not just by his family members, but also by Dr. Casati. He has made great strides in managing his disability in the community largely because of his positive attitude. This will be very difficult in an institution. I am concerned that a lengthy period of imprisonment would not only be detrimental to D.C.’s well-being, but counter-productive to his excellent prospects of rehabilitation as they stand now. A shorter sentence followed by a period of probation in the community with supportive counselling and programming is far more likely to achieve the rehabilitative goals. Further, in this case, rehabilitation is the key to the protection of society. D.C. is not an inherently dangerous person, nor is he sexually deviant. Educating D.C. about sexuality, consent, and personal responsibility is, in my opinion, the best route towards protecting the public. The length of rehabilitative programming can also be extended by adding a probation period to a conditional sentence, providing five years of rehabilitative programming outside the institution, which is far more likely to be successful than programs within the penitentiary.

118There is considerable authority in the case law for the imposition of a conditional sentence in cases where the typical range of sentence would be a term of imprisonment in a penitentiary. I recognize that there are features of this case that support placing primary weight on deterrence and denunciation and imposing a sentence of imprisonment. Notwithstanding that, in my view, a conditional sentence is appropriate for D.C.

119Directives to give primary importance to denunciation and deterrence can arise by statute or judicial precedent. Typically, these are situations where the safety of a complainant or of the public generally are directly involved. Clearly, safety must be paramount in these circumstances. However, where particular issues of safety are less pressing because of the particular circumstances of a case or of an offender, denunciation and deterrence will not overcome other pressing objectives of sentencing. For example, denunciation and deterrence are recognized as the primary factors influencing sentencing in firearms offences, but there can still be conditional sentences imposed in such cases depending on the circumstances. As stated by Code J. in R. v. Collins:

In my view, the principle that emerges from cases like Whittaker, Sellars, and Hassan is that exceptionally strong mitigating circumstances, relating to both diminished moral culpability and the complete reformation of the accused while on bail, can justify a departure from the normal need for substantial jail sentences in firearms possession and drug trafficking cases.⁵³

120In its decision in A.L., the Court of Appeal for Ontario reviewed several of its own recent rulings in which conditional sentences were found, in appropriate circumstances, to be available for cases involving sexual assaults against children, as follows:

This court addressed the exceptionality of conditional sentences for sexual offences against children in R. v. M.M., 2022 ONCA 441. In M.M., at para. 16, this court noted that, given the Supreme Court’s instructions in Friesen, “[c]onditional sentences for sexual offences against children will only rarely be appropriate” and “[t]heir availability must be limited to exceptional circumstances that render incarceration inappropriate”. As an illustration of an exceptional circumstance, this court gave the example of medical hardship that could not be adequately addressed within a correctional facility, expressly stating that exceptional circumstances were not limited to that example.

Chief Justice Tulloch made a similar point in R. v. Pike, 2024 ONCA 608, 440 C.C.C. (3d) 281, at para. 182, where he explained this court’s use of the term “exceptional circumstances” in M.M. He stated that M.M. used “exceptional circumstances” as shorthand for personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence proportionate. He also noted that this interpretation is consistent with the principle that “sentencing must focus on proportionality, not pigeonholing cases into ill-defined exceptional circumstance categories”.

While exceptional, there is no rigid rule that conditional sentences can never be imposed in the appropriate case: see, for example, R. v. Faroughi, 2024 ONCA 178, 435 C.C.C. (3d) 1. Reflecting the individualized nature of sentencing, conditional sentences for sexual offences against children have been upheld in exceptional cases where the court is satisfied that the sentencing judge adverted to the relevant governing principles and there was no basis to interfere with the factual findings of exceptionality: see, for example: R. v. Singaqti, 2024 NUCA 10, at para. 15; R. v. T.J.H., 2023 YKCA 2, at para. 27; R. v. Germain, 2022 ABCA 257, at paras. 84, 85; R. v. R.B.B., 2024 NSCA 17, at paras. 41, 45. That is the case here.⁵⁴

121Thus, in the absence of a mandatory minimum sentence of imprisonment, I would impose a two-year less a day conditional sentence, followed by a three-year probation period. I will not review all the conditions at this point, but the sentence would start with a house arrest (with exceptions for work) and gradually move to less strict supervision. There would be a requirement for counselling and monitoring throughout the five years.

4. Stage One: Fit and Appropriate Sentence for Reasonably Foreseeable Scenario

122In the event I have erred with respect to the fit sentence for D.C. in the absence of a mandatory minimum, I will consider, in the alternative, the appropriate sentence for a reasonably anticipated scenario. The scenario proposed by the defence involves an offender with a similar or greater degree of developmental disability as D.C. who has protected sexual intercourse with his sister on only one occasion when he is just past his 18th birthday and she is just under 16. Further, although consent is not a defence to incest, this hypothetical scenario would not involve any form of coercion or breach of trust, but would be more akin to both siblings mutually agreeing to sexual experimentation. The Crown does not take issue with this being an appropriate reasonably foreseeable scenario, provided that the absence of force or violence is seen only as an absence of what would otherwise be an aggravating factor. I agree that is an appropriate distinction.

123The distinguishing factors between the hypothetical scenario and the case before me are: the reduced age difference between the siblings; the age of the complainant; the dramatically reduced number of incidents; and the willingness of the complainant to experiment sexually. There could be other variables added including making the offender more significantly impaired cognitively than D.C. and the sister with an effective cognitive age beyond that of her brother; and/or making the offender drunk and his sister not impaired at all. However, I will proceed based on the scenario proposed by the defence, with only one addition, that being a guilty plea and expression of remorse from the offender.

124I find the proposed scenario to be reasonable within the meaning of the ruling of the Supreme Court of Canada in Senneville. It is a scenario that can arise in real life and is easily foreseeable. The actions set out in the scenario would constitute the offence, although at the low end of the degree of gravity scale. The moral blameworthiness of the offender is also within reasonably foreseeable ranges. There are many individuals with cognitive disabilities who could fall within a scenario such as this. The Court in Senneville specifically contemplated using a scenario that included personal characteristics of an offender that could affect moral blameworthiness, holding:

In keeping with Nur, Lloyd and R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, Hills confirmed that “characteristics that are reasonably foreseeable for offenders in Canadian courtrooms, like age, poverty, race, Indigeneity, mental health issues and addiction, should not be excluded from consideration” (para. 86; see also paras. 87 et seq.). This position logically follows from the cardinal principle of proportionality (s. 718.1 Cr. C.). It makes it imperative to take into account both the gravity of the offence and the moral blameworthiness of the offender, which is determined, among other things, on the basis of the offender’s particular circumstances (Hills, at para. 86, citing Nasogaluak, at para. 42, and Ipeelee, at para. 38). For the purposes of the s. 12 analysis, it would be completely artificial — and contrary to sentencing law — to ignore the fact that persons who commit crimes have different personal characteristics that may cause their degree of moral blameworthiness to vary, in particular because of their disadvantaged circumstances, including marginalization or systemic discrimination (Hills, at paras. 89‑90).⁵⁵

125There are many examples in the case law involving one act of incest, as well as cases where no coercion or breach of trust was involved, particularly as between siblings. The factual scenario is not remote or far-fetched. The Court clarified in Senneville that the word “remote” does not mean that the proposed hypothetical cannot be too remote from the offender and offence before the court.⁵⁶

126There are numerous instances of sibling incest in which conditional or suspended sentences have been imposed.⁵⁷ There are also cases post-Friesen in which sentences below two years have been imposed for sexual offences against children, based on exceptional circumstances of the offender.⁵⁸ On the hypothetical scenario proposed, I would consider the most appropriate disposition to be a suspended sentence, or possibly even a conditional discharge if there was a particular hardship that might result from having a criminal record for this one act.

5. The Rule of Stare Decisis and its Application to R. v. M.R.M.

The Decision Alleged to be Binding

127The position of the Crown is that the issue of whether the five-year mandatory minimum sentence under s. 155(2) of the Criminal Code is unconstitutional has already been determined by another judge of this Court and that I am bound by that decision. In R. v. M.R.M., LaBrosse J. found that the mandatory minimum sentence was not grossly disproportionate to the sentence the offender would have received in any event, and also was not grossly disproportionate to a reasonable hypothetical scenario.⁵⁹ He sentenced the offender to five years in prison.

128In that case, the accused pleaded guilty to incest based on an agreed statement of facts that he had sexual intercourse with his sister on three to five occasions, commencing when she was 12 years old and he was 18. As a result, she became pregnant and delivered a baby when she was herself only 14-years-old. That child had what the trial judge described as “numerous special needs and health problems.”⁶⁰ Although the complainant was not required to testify at trial, she did testify at the Gardiner hearing at the sentencing stage and so was not spared the ordeal and likely trauma of testifying as a result of the guilty plea. However, the offender accepted responsibility for his offences and expressed remorse. He had no criminal record. The offender did not grow up with the complainant. He came to Canada from Haiti when the complainant was 11 years old. The offender had lived a secluded life in Haiti due to dangers arising from his family’s political connections. After coming to Canada, he remained socially secluded and had difficulties adjusting and was said to be “immature”.⁶¹

129At the time of sentencing, the offender was 25 years old and had another child with his common-law partner. Labrosse J. noted that the offender would likely lose his job and face deportation if sentenced to a penitentiary term, but the particulars of that and whether there was a right of appeal were unclear.

130The trial judge first referred to the old case law in which a sentence of 3-5 years was considered appropriate for incest.⁶² He then considered the more recent decisions of the Court of Appeal in D.(D.) and P.M. and concluded that the range was now more like 4 ½ to 6 ½ years.⁶³ I do not think that is accurate, particularly now in light of Friesen, but if it is incorrect, the actual range is higher. Based on the aggravating and mitigating factors in the case before him, Labrosse J. held that M.R.M’s personal circumstances put him at the low end of the range and sentenced him to five years.

131Obviously, a sentence of five years is not disproportionate to the mandatory minimum sentence of five years. However, Labrosse J. went on to consider whether the mandatory minimum constituted cruel and unusual punishments based on a reasonably foreseeable scenario. He rejected the scenario proposed by the defence as being “remote” and “fanciful,” which I consider to be an accurate assessment.⁶⁴ The fact situation proposed involved a sister (aged 18) and a brother (aged 15) who engaged in one non-violent act of sexual intercourse. The sister had recently arrived in Canada from the Ivory Coast and had not even known of her brother’s existence until she got to Canada. Consensual incest is said to be legal in the Ivory Coast. The single incident of sexual intercourse was initiated by the 15-year-old brother when the sister (the offender) was intoxicated, but not to the point of being incapable. The brother was said to be without “developmental delays or mental health problems” and “not emotionally harmed or damaged” by the incest.⁶⁵ The sister (offender) had no prior record.

132After rejecting the hypothetical presented by the defence, Labrosse J. considered other hypothetical possibilities. He posited a situation similar to the one proposed, but without the Ivory Coast aspects. He also queried the factual situation in the case before him, but without the pregnancy and with only one incident of intercourse. He then proposed using the case of R. v. C.L.,⁶⁶ in which there was one incident of sibling incest in which the offender (brother) was 23 and his sister was 16, but where the offender, according to the brief Court of Appeal reasons, had a “significant criminal record, pending deportation order, and conviction for sexual assault” and was on bail for outstanding charges at the time he committed the incest offence.⁶⁷ In that case, Code J. imposed a sentence of 3 ½ years, which was conceded on appeal to be fit, the only issue being the credit for time served. Labrosse J. reasoned that the offender’s criminal record in that case balanced out with the fact that the complainant was not under the age of 16. He also noted that the decisions in D.(D). and P.M. had not been considered in C.L. and that the facts in the case before him were slightly less aggravating than in C.L. He therefore determined that the range for this hypothetical would be 3 ½ years to 6 years and assigned a sentence of 3 ½ years for purposes of the constitutional analysis. He then ruled that the 5-year minimum sentence was disproportionate but not “grossly” so, and that there was therefore no violation of s. 12 of the Charter.⁶⁸

133The offender in M.R.M. appealed from the sentence imposed and sought bail pending that appeal. One issue on appeal was that the trial judge erred with respect to the reasonably foreseeable scenario when considering the constitutionality of the mandatory minimum sentence. In brief reasons denying bail, van Rensburg J.A. held that she could not say that the constitutional challenge was without merit. However, bail was not warranted because there was no prospect that the offender would have completed what would have been a fit sentence before the appeal would be heard. She stated:

The applicant has just now completed one year of his five-year sentence. It is anticipated by both counsel that the appeal can be perfected within weeks and the appeal will be scheduled for a hearing shortly thereafter. There is no undue hardship in serving a fit sentence, and it would not be in the public interest to release the applicant in these circumstances.⁶⁹

The Rules of Stare Decisis

134It is well accepted that the rule of stare decisis requires a judge to follow the rulings of courts of higher jurisdiction. Judges are not required to follow decisions of lower courts or courts in other jurisdictions. However, until the decision of the Supreme Court of Canada in R. v. Sullivan,⁷⁰ the rules that apply with respect to judges of coordinate jurisdiction were less clear. This concept is referred to as “horizontal stare decisis”.

135Prior to Sullivan, judges on the same court would sometimes decline to follow other decisions if they were “plainly wrong” and would pick and choose amongst various conflicting decisions if there were cases going both ways on the same issue. The Supreme Court of Canada clarified this area of the law in Sullivan and expressed the test to be applied succinctly early in the decision as follows:

Superior courts at first instance may not be bound if the prior decision is distinguishable on its facts or if the court had no practical way of knowing that the earlier decision existed. Otherwise, the decision is binding and the judge may only depart from it if one or more of the exceptions helpfully explained in Re Hansard Spruce Mills, 1954 253 (BC SC), [1954] 4 D.L.R. 590 (B.C.S.C.), apply.⁷¹

136Later in its decision, the Supreme Court summarized the application of the Spruce Mills criteria as follows:

Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances:

The rationale of an earlier decision has been undermined by subsequent appellate decisions;
The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or
The earlier decision was not fully considered, e.g. taken in exigent circumstances.

137The decision of Labrosse J. in M.R.M. is a decision of this court, and the issue of horizontal stare decisis is therefore directly raised. The second and third of the Spruce Mills criteria clearly do not apply. The decision was not reached through carelessness or inadvertence and was fully considered. Although defence counsel argued that the decision of Labrosse J. was not “fully considered” because the hypothetical case used in the analysis was not an offender with a developmental disability, I find no merit in that submission. This category is meant to catch cases where a judge must make a quick decision in an urgent situation without the opportunity to reflect fully on the law. That is not what happened in M.R.M. The issue was fully argued before Labrosse J. who then reserved his decision and issued comprehensive written reasons almost three months later.

138The question then is whether the decision in M.R.M is distinguishable on its facts, or whether its rationale has been undermined by subsequent appellate decisions. Otherwise, I am bound to follow it and must sentence D.C. to 5 years in the penitentiary.

Analysis and Conclusion

139In my view, I am not bound by the decision in M.R.M. for two reasons that are somewhat intertwined. The finding of what would be a fit sentence for M.R.M. is distinguishable on its facts from the case before me as the circumstances of the two offenders are quite different. The finding that this particular sentence was not cruel and unusual punishment for M.R.M. is not something that binds me with respect to the sentence for D.C. The more difficult issue is the reasonably foreseeable scenario that was used by Labrosse J. in upholding the constitutionality of the mandatory minimum sentence. He rejected the scenario proposed by the defence, with which I take no issue. However, the scenario he used instead is quite different from the scenario put before me in this case. There are two ways to look at this. First, there has been considerable binding authority on what constitutes a reasonably foreseeable scenario since M.R.M. was decided in 2019, many of which are from the Supreme Court of Canada, notably, Hills, Bertrand Marchand, and Senneville.⁷² To the extent that Labrosse J.’s delineation of the reasonable hypothetical is at odds with those subsequent binding authorities, I am not bound to follow it. Second, the finding of constitutionality is only made as it relates to a hypothetical situation fundamentally different from the one before me, in particular with respect to the moral blameworthiness of the offender. Because those facts are distinguishable from those before me, I am not bound to reach the same conclusion. This is not because of the Spruce Mills criteria, but because trial judges are always at liberty to reach different conclusions based on different facts.

140In Hills, the issue was the mandatory minimum four-year sentence for discharging a firearm into a “place.” The conduct of the offender was quite extreme and included firing shots from a powerful rifle designed for hunting big game into a house occupied by two parents and two children. The Court’s finding that the mandatory minimum was grossly disproportionate flowed from a reasonably foreseeable scenario, rather than from the facts related to the facts involving Mr. Hills. In dealing with the hypothetical offender, the Court held as follows:

[Empasis added.]

141Likewise, in Bertrand Marchand the reasonably foreseeable scenarios included hypothetical offenders who had personal characteristics related to moral blameworthiness. The offender in that case was an adult 22-year-old charged with luring a child (who he knew to be 13 years old) over the internet over a period of two years. He ultimately also had intercourse with that child, which was the subject of other charges. However, one of the issues before the court in that case was the constitutionality of the mandatory minimum sentence for child luring. The reasonably foreseeable scenario used in Bertrand Marchand was:

The representative offender is a first-year high school teacher in her late 20s with no criminal record. The offender has been diagnosed with bipolar disorder. One evening, she texts her 15-year-old student to inquire about a school assignment. Feeling manic, she directs the conversation from casual to sexual. The two meet that same evening in a private location where they both participate in sexual touching. The offender does not engage inappropriately with the student on any further occasions. The offender pleads guilty and expresses remorse on sentencing.⁷⁴

142The reasonably foreseeable scenario involved an offender quite unlike Mr. Bertrand Marchand, but who was nevertheless a reasonably foreseeable person who could have committed such an offence. Indeed, the scenario is loosely based on a real case, Hood, that occurred in Nova Scotia mentioned above. The hypothetical offender had a psychiatric condition that had an impact upon, but did not excuse, her criminal conduct. It did, however, reduce her moral blameworthiness.

143The hypothetical used by Labrosse J. in M.R.M. did not include any characteristics of the hypothetical offender that could operate to reduce moral blameworthiness. It is possible that if he had, the sentence would be lower than the 3 ½ years he assigned to it, which in turn could have supported a finding of gross disproportionality.

144The main criticism of the defence with respect to M.R.M. is that the reasonably foreseeable scenario rejected, and the scenario used, appear to be based on the conclusion that the hypothetical must bear some relationship to the case before the court. There is support for that in the decision. For example, Labrosse J. declined to use the hypothetical suggested by defence counsel as a “fanciful hypothesis bearing little relation to the case at hand” and stated that defence counsel’s “hypothetical situation is difficult to consider as it has no bearing on the victim or the harm caused by the alleged act.” It is clear from the Supreme Court’s decision in Senneville (as well as in Hills and Bertrand Marchand) that the reasonably foreseeable scenario cannot be far-fetched or fanciful, but it does not need to bear any similarity to the facts of the case before the Court. However, the hypothetical used in M.R.M. merely removed some of the aggravating factors present in the actual case.

145In Senneville, the Court examined the possibility that the confusion about the hypothetical case needing to be related to the real case may have arisen because of the discrepancy between the English translation of words used in a French language decision, stating:

Despite its continuous presence in our case law, I note that the exact meaning of the French expression “faible rapport avec l’espèce” has never been discussed. In the English version of Goltz, the words “sur le fondement d’exemples extrêmes ou n’ayant qu’un faible rapport avec l’espèce” were rendered by “on the basis of remote or extreme examples”. The adjective “remote” was used generally, without establishing a relationship of proximity with specific cases. The ambiguity arising from the difference between the English and French versions can easily be eliminated by prioritizing a true contextual reading of our case law.

In the above‑quoted excerpt from Goltz (pp. 515‑16), the expression “on the basis of remote or extreme examples” is used just after the sentence stating that “[a] reasonable hypothetical example is one which is not far‑fetched or only marginally imaginable as a live possibility”. That is the central idea of the above‑quoted passage, which is rephrased a few lines later: “The applicable standard must focus on imaginable circumstances which could commonly arise in day‑to‑day life” (p. 516). Gonthier J. in no way suggested that the “rapport” (connection) of a reasonably foreseeable scenario to the specific circumstances of the offender is an independent test that may limit what could be “imaginable circumstances”.

The scenarios chosen by this Court in Hills and Bertrand Marchand confirm that my colleagues are isolating the word “remote” from the rest of our case law. Our jurisprudence has consistently taught that it is the reasonably foreseeable nature of the scenario that is important, in light of the range of conduct caught by the offence with which the minimum sentence is associated.⁷⁵

In short, the s. 12 analysis does not require factual proximity between the reasonably foreseeable scenario and the case at hand.

146The hypothetical scenario chosen by Labrosse J. did not reach past the nature of the facts before him other than to reduce the number of incidents from several to only one and to remove the resulting pregnancy. If Labrosse J. had the benefit of the decision in Senneville he might well have expanded the parameters of the reasonably foreseeable scenario, which could result in an entirely different result.

147Accordingly, I find the hypothetical situation posited by Labrosse J. to be undermined by subsequent and binding decisions of the Supreme Court of Canada. For that reason, the decision in M.R.M., while of persuasive force in keeping with principles of judicial comity, is not binding on me and I decline to follow it.

148Quite apart from these issues of law, I also believe the decision in M.R.M. to be factually distinguishable from the case before me because the reasonably foreseeable scenario used is fundamentally different from the hypothetical presented in this case, and also from the real-life facts of D.C.’s case. The finding of constitutionality in M.R.M. is based entirely on the factual scenario underlying the proportionality analysis, both with respect to the facts of the offence itself and the circumstances of the offender. The rejection of one hypothetical case framed quite narrowly cannot mean that other reasonably foreseeable scenarios cast more broadly would not result in a different decision. A finding of unconstitutionality based on a reasonably foreseeable hypothetical will be conclusive and cannot be distinguishable on its facts. The same is not true for a finding of constitutionality, provided that the fact scenario used in the second case is reasonably foreseeable (which is conceded by the Crown before me) and results in a grossly disproportionate sense.

149Finally, I find the Supreme Court’s decision in Nur to be particularly helpful on this point. The Court held that it is always open to an individual offender to argue that the impact of a mandatory minimum on one offender constitutes cruel and unusual punishment, even though that issue was decided in a different way for a different offender. Further, it is also open to an offender to put forward a reasonably foreseeable scenario that is different from the one used in an earlier decision that upheld the provision as constitutional. Although Nur precedes the decision in Sullivan, I consider it to still be good law on this point. The Court held in Nur:

This brings us to the second ancillary question — the effect of a ruling that a particular mandatory minimum provision does not violate s. 12. Two questions arise. First, can a particular offender argue in a future case that the provision violates s. 12 because it imposes cruel and unusual punishment on him or her? The answer, all agree, must be yes. If the offender can establish new circumstances or evidence, including mitigating factors specific to the offender, it is open to a court to reconsider the constitutionality of the law. Second, can the offender in a future case argue that the provision as applied to others violates s. 12? The answer to this question is that it depends. Once a law is held not to violate s. 12, stare decisis prevents an offender in a later case from simply rearguing what constitutes a reasonably foreseeable range of the law. But stare decisis does not prevent a court from looking at different circumstances and new evidence that was not considered in the preceding case. A court’s conclusion based on its review of the provision’s reasonably foreseeable applications does not foreclose consideration in future of different reasonable applications: Morrisey, at para. 89, per Arbour J. That said, the threshold for revisiting the constitutionality of a mandatory minimum is high and requires a significant change in the reasonably foreseeable applications of the law. In a nutshell, the normal rules of stare decisis answer the concern raised by the Attorney General of Ontario that “each subsequent trial court [will be asked] to duplicate the analysis.”⁷⁶

150Accordingly, I find that I am not bound to follow the decision in M.R.M.

6. Stage 2: Comparison of Fit Sentence with Mandatory Minimum

151The next question is whether the mandatory minimum sentence of five years is grossly disproportionate to the sentence I would otherwise impose on D.C., or alternatively on the representative offender in the hypothetical situation before me.

The Test

152The grossly disproportionate test is an onerous one. It goes beyond whether the sentence is unfit, or excessive, or even disproportionate to the degree of moral blameworthiness. The Supreme Court of Canada in Hills held:

It is not therefore the existence of some disproportion which will offend the grossly disproportionate requirement of s. 12. Stated otherwise, the analysis of the grossly disproportionate standard poses the following question: is the difference between the fit sentence and the mandatory minimum sentence so grossly disproportionate that it violates human dignity such that it amounts to cruel and unusual punishment? According to well‑established jurisprudence, the challenged penalty may be unfit, excessive and disproportionate, but it only crosses the constitutional line when it becomes grossly disproportionate. This question raises the common challenge of distinguishing the gradations and demarcations between related legal standards and reaching a conclusion about which legal standard is met. While it is frequently difficult to gauge questions of degree or to measure when something that is otherwise permitted has become grossly disproportionate, many legal standards require just this type of analysis.⁷⁷

153The Court in Senneville explained the standard as follows:

The second stage of the analysis therefore requires a comparison between the sentence that was determined at the first stage and the mandatory minimum sentence. This involves assessing the extent of the disparity between these two sentences and determining whether that disparity is such that it meets the constitutional standard of gross disproportionality. It has been consistently emphasized that this standard is a particularly high bar (Lloyd, at para.; Bissonnette, at para. 70; Hills, at paras. 109 and 115). The comparative analysis must establish that the sentence is “so excessive as to outrage standards of decency” (Bertrand Marchand, at para. 109, quoting Hills, at para. 109). Put another way, the sentence must shock the conscience or be abhorrent or intolerable (Hills, at paras. 109‑10). This is assessed not on the basis of what a court believes to be the views of Canadian society, but rather “through the values and objectives that underlie our sentencing and Charter jurisprudence” (para. 110).⁷⁸

154The Supreme Court in Hills, and again in Senneville, provided guidance to judges in how to conduct the comparative analysis required at this second stage. There are three crucial elements to be considered: (1) the scope and reach of the offence; (2) the effects of the penalty on the offender; and (3) the penalty, including the balance struck by its objectives.⁷⁹

155Expanding on these three components, the Court in Senneville explained:

It is essential to consider these three components in the same manner to ensure that a contextual and exhaustive analysis is conducted. The first two components focus on the proportionality of the sentence; the first, relating to the scope and reach of the offence, is used to assess variations in the gravity of conduct and in the degree of culpability, while the second, relating to the effects of the penalty, is used to assess the severity of the sentence and to determine whether its “effect . . . is to inflict mental pain and suffering on an offender such that the offender’s dignity is undermined” (Hills, at para. 133). The third component consists in determining whether the sentence is excessive in light of the legislative objectives of sentencing for the offence in question, having regard to “the legitimate purposes of punishment and the adequacy of possible alternatives” (para. 138, quoting Smith, at pp. 1099‑1100). Each of these three components therefore plays a distinct and necessary role in the analysis. If little importance is given to the first component, it will not be possible to fully grasp the variations in the gravity of conduct and in the degree of culpability for the offence in question.⁸⁰

The Scope and Reach of the Offence

156There can be no doubt that incest is a serious offence, no matter how it is committed. However, there is a vast range of conduct included within the umbrella of incest that will be subject to the 5-year mandatory minimum sentence if one of the parties is under the age of 16. For some of the conduct that would constitute this offence, the appropriate sentence will likely greatly exceed the minimum sentence. For example, it would include an unrepentant father having forced, brutal, and painful intercourse with his very young daughter over the course of many years, including consequential pregnancies when the victim is but a child herself. There would typically be long-term and perhaps permanent psychological harm to the victim, not to mention the physical torture represented by each act of abuse. Five years would be a manifestly too lenient sentence for such an offender. On the other hand, the incest offence would also include one incident of sexual experimentation between half-siblings who barely know each other, when one is 18 and the other just under 16, and where there are no negative consequences thereafter. Should one of those teenagers go to a federal penitentiary for five years when he or she might not even have been the instigator?

157The Supreme Court has held that mandatory minimum sentences for offences that can be committed in many ways and with great variety in degrees of moral culpability are particularly susceptible to attack under s. 12 of the Charter. As stated in Hills:

… The case law reveals that a mandatory minimum sentence is more exposed to challenge where it captures disparate conduct of widely varying gravity and degrees of offender culpability (Lloyd, at para. 24; Smith, at p. 1078). Indeed, 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” (Lloyd, at para. 3; see also paras. 24, 27 and 35-36). Thus, the wider the scope of the offence, the more likely there is a circumstance where the mandatory minimum will impose a lengthy term of imprisonment on conduct that involves lesser risk to the public and little moral fault (Nur, at para. 83). In those cases, the sentence is liable to capture conduct that clearly does not merit the mandatory minimum.⁸¹

Effects of the Penalty on the Offender

158The Supreme Court has been clear that the second component of this analysis involves an assessment of the impact of the minimum sentence on the particular offender, be it the accused or the hypothetical offender in the reasonably foreseeable scenario. This relates to the type of sentence (for example, a suspended or conditional sentence rather than imprisonment) and the length of the sentence.

159This component strongly points to a finding of gross disproportionality. Both the actual offender and the hypothetical one are young first-offenders with developmental disabilities. The impact of five years in a penitentiary for such a person is profound and devastating. The Court in Hills observed:

Courts should consider the effect of a sentence on the particular offender. The principle of proportionality implies that where the impact of imprisonment is greater on a particular offender, a reduction in sentence may be appropriate (Suter, at para. 48; B. L. Berger, “Proportionality and the Experience of Punishment”, in D. Cole and J. Roberts, eds., Sentencing in Canada: Essays in Law, Policy, and Practice (2020), 368, at p. 368). For this reason, courts have reduced sentences to reflect the comparatively harsher experience of imprisonment for certain offenders, like offenders in law enforcement, for those suffering disabilities (R. v. Salehi, 2022 BCCA 1, at paras. 66-71 (); R. v. Nuttall, 2001 ABCA 277, 293 A.R. 364, at paras. 8-9; R. v. A.R. (1994), 1994 4524 (MB CA), 92 Man. R. (2d) 183 (C.A.); R. v. Adamo, 2013 MBQB 225, 296 Man. R. (2d) 245, at para. 65; R. v. Wallace (1973), 1973 1434 (ON CA), 11 C.C.C. (2d) 95 (Ont. C.A.), at p. 100), or for those whose experience of prison is harsher due to systemic racism (R. v. A.F. (1997), 1997 14505 (ON CA), 101 O.A.C. 146, at para. 17; R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at para. 37; R. v. Marfo, 2020 ONSC 5663, at para. 52 ()). To ensure that the severity of a mandatory minimum sentence is appropriately characterized under s. 12, it is necessary to consider the impact of incarceration in light of these individualized considerations (L. Kerr and B. L. Berger, “Methods and Severity: The Two Tracks of Section 12” (2020), 94 S.C.L.R. (2d) 235, at pp. 238 and 244‑45).[^^82]

[Emphasis added.]

160The difference between the mandatory minimum and the sentence I would impose for the hypothetical offender is, needless to say, vast. There is also a vast difference between the conditional sentence to two years less a day for D.C. and 5 years in a penitentiary. However, even if D.C. were sentenced to two years less a day in jail, the three years difference in sentence and the kind of institution in which it would be served are also very disparate.

161The Court in Hills placed considerable emphasis on this factor when considered with respect to a youthful offender, stating:

The second component is the effects of the punishment on the actual or reasonably foreseeable offender. A four-year term of imprisonment would have significant deleterious effects on youthful offenders, who are viewed by our criminal law as having high rehabilitative prospects. It follows that sentences for youthful offenders are often largely directed at rehabilitation. To prioritize rehabilitation, youthful offenders should benefit from the shortest possible sentence that is proportionate to the gravity of the offence (see R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797, at para. 7; R. v. Laine, 2015 ONCA 519, 338 O.A.C. 264, at para. 85). This is because incarceration is often not a setting where the reformative needs of young people are met (Ruby, at §5.191). Youthful offenders in federal penitentiaries are often bullied, recruited into adult gangs for protection and are vulnerable to placements in segregation (Office of the Correctional Investigator and Office of the Provincial Advocate for Children and Youth, Missed Opportunities: The Experience of Young Adults Incarcerated in Federal Penitentiaries (2017)). For the youthful offender at bar, the difference between a reformatory sentence served in community and a four‑year period of incarceration would be profoundly detrimental.

[Emphasis added]

162Those comments related to a 4-year mandatory minimum. The impact is even more devastating for the situation here in which the minimum sentence is 5 years and the offender is not only a youthful offender in chronological terms, but the equivalent of a young child in cognitive development terms.

The Penalty and its Objective

163The penalty in this case is presumably directed towards preventing individuals from having penetrative sexual intercourse with a child who is a blood relative. While the offence is indeed abhorrent and would be considered as such by any right-minded person in our society, the question is whether a 5-year mandatory prison sentence will achieve that end. When applied to D.C., or to the developmentally disabled hypothetical offender, it is decidedly unlikely to achieve that end, and indeed is likely to work against it.

164I have referred above to the harshness of a penitentiary setting for a young offender, and particularly one with a cognitive or developmental disability. This would be dehumanizing and destabilizing. It will not be conducive to the kind of education and socialization training that will be required to ensure that D.C. fully understands what is involved in this kind of offence and the importance of controlling his behaviour around sexuality in the future. This will be virtually impossible to achieve by putting him in a federal penitentiary for 5 years and then releasing him. It is the exact opposite of what needs to be done. It is inhumane.

165Specific deterrence, the protection of children, and rehabilitation are all undermined by such an approach. Denunciation is hardly necessary; society is already revulsed by an adult male having sex with a child, and even more so if that child is a blood relative. General deterrence is the only potential objective that could notionally be met, but it is less relevant where the offender is a young first-time offender and even more so in light of the developmental disability.⁸³ There is no evidence that general deterrence would be achieved by such a sentence in this case, but even if it did, it surely cannot be said that a 5-year sentence is required.

166As stated in Nur:

General deterrence — using sentencing to send a message to discourage others from offending — is relevant. But it cannot, without more, sanitize a sentence against gross disproportionality: “General deterrence can support a sentence which is more severe while still within the range of punishments that are not cruel and unusual” (R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 45, per Gonthier J.). Put simply, a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending.

167I find the analysis under this component also points towards the 5-year minimum being grossly disproportionate.

The Mandatory Minimum Sentence is Cruel and Unusual Punishment

168Five years in a penitentiary is a tough sentence in any circumstances, and even more so for a first-time offender. When a developmental disability is added to that mix, in my view it becomes cruel and unusual. I have found that the appropriate sentence both for D.C. and for the hypothetical offender does not require a punishment of imprisonment to meet the objectives of sentencing. The disparity between those dispositions and 5 years in a penitentiary is extreme. In Hill, this type of disparity was noted to support a finding that the mandatory minimum is grossly disproportionate.

In addition, assessing gross disproportionality may be more challenging in certain circumstances. This is because sometimes the difference between stages one and two will involve penalties which are of different types or fall within distinct categories. For example, there may be cases in which a fine would be a fit sentence but the impugned provision imposes imprisonment, or cases in which a discharge or conditional sentence would be fit but instead a custodial sentence is mandated by law. The disparity in such cases is more readily apparent because the comparison involves two different types of punishment and the effects are often more extreme. Other cases may involve a comparison between the term of a proportionate period of incarceration and the term of imprisonment contained in the mandatory minimum. In such cases the type of punishment is the same: imprisonment. Such cases ask decision makers to engage in normative reasoning and make a judgment call about when a sentence is so long it becomes grossly disproportionate.⁸⁴

169Even if I had found a jail sentence of 18 months, or even 2 years less a day was appropriate for D.C., I would still consider the difference between that sentence and 5 years in a penitentiary to be grossly disproportionate.

170Whichever of the adjectives have been used in the case law, the disparity between what I have found to be a fit sentence and 5 years in the penitentiary meets the test. The mandatory minimum, when applied to the offender in this case, and in particular to the reasonably foreseen scenario, would shock the conscience of an informed member of our society. It is abhorrent; it is so excessive as to outrage standards of decency; it is intolerable. I cannot sanction such an unconscionable outcome.

171I therefore find that the mandatory minimum in this case constitutes cruel and unusual punishment within the meaning of s. 12 of the Charter.

7. Section 1 of the Charter

172The Crown takes the position that if the 5-year mandatory sentence constitutes cruel and unusual punishment, it is nevertheless saved under s. 1 of the Charter as a reasonable limit that can be “demonstrably justified in a free and democratic society.” I agree that the law has a pressing and substantial objective of preventing individuals from having penetrative sexual intercourse with a child who is a blood relative. It is not so clear that there is a rational connection between the mandatory minimum sentence and the objectives of the legislation. Denunciation is achieved through the 5-year minimum sentence, but there is no clear evidence that it achieves the goal of general deterrence.⁸⁵ However, for present purposes, I will accept that it does. The real problem with the s. 1 justification is that this is not a minimal impairment of the Charter rights involved. Rather, it overreaches, catching within it, individuals whose moral blameworthiness does not come close to warranting imprisoning them for five years in the hopes of deterring others. Further, when it comes to proportionality (balancing the salutary and deleterious effects of the mandatory minimum), the test is clearly not met.

173If the objective of this provision is to prevent incest, the 5-year mandatory minimum sentence is an overly blunt and excessive tool. This is a social tragedy and one that is far better addressed by education and counselling programs, particularly for individuals with developmental or other cognitive disabilities, than by excessive and unnecessary punishment. Neither general deterrence nor specific deterrence are likely to be achieved through excessively imprisoning offenders. Minimum sentences are not required to ensure that appropriately severe sentences are imposed when necessary for specific deterrence or protection of the public. The mandatory minimum here cannot be said to be a minimum impairment of the right to be free from cruel and unusual punishment.

174As for proportionality, the analysis between the benefits of a 5-year mandatory minimum sentence (which are negligible) and the deleterious effects of such a provision on this offender and others (such as in the hypothetical reasonably foreseeable scenario) has already been conducted as inherent in the gross disproportionality analysis. It would be an exceedingly rare situation to find a sentence to be grossly disproportionate and shocking to the public conscience, and then nevertheless find that its benefits outweigh any bad effects. The Crown has not cited any case where the court has found a minimum sentence to constitute cruel and unusual punishment in violation of s. 12 of the Charter but then gone on to find it to be a reasonable limit under s. 1. I doubt there is one at an appellate level. The only case cited by the Crown on this point is R. v. Nur, in which the Court made this very point and found that a s. 12 breach was not saved by s. 1.

175In Bissonnette, the Supreme Court dealt with whether allowing parole ineligibility periods for multiple murder convictions to be stacked up and applied consecutively constituted cruel and unusual punishment. The Court found that this was a breach of s. 12 of the Charter as being cruel and unusual punishment and then held:

In this case, since the appellants have made no arguments concerning the justification for the impugned provision, they have not discharged the onus resting on them. In any event, it is hard to imagine how a punishment that is cruel and unusual by nature could be justified in a free and democratic society. I note that, in Nur, this Court stated that it would be difficult to show that a “grossly disproportionate” punishment under s. 12 could be “proportionate as between the deleterious and salutary effects of the law under s. 1.”⁸⁶

176I agree that it is hard to imagine that something found to be cruel and unusual punishment after the weighing process involved in a s. 12 analysis could then be found to be nevertheless justified after the weighing process under s. 1. However, if there is such a case, it is certainly not this one.

177I find the mandatory minimum sentence in s. 155(2) of the Criminal Code is unconstitutional and is therefore of no force and effect.

F. CONCLUSION AND SENTENCE IMPOSED

178Having concluded that the mandatory minimum sentence is inoperative, it remains for me to sentence D.C. on these offences. Although there are several different offences based on timing (whether the complainant was over or under the age of 16) and the nature of the assaults (not all of them having been penetrative sex), they are all connected and continuing acts involving the same parties. I have therefore approached it on a global basis.

179I am imposing a sentence of 2 years less a day to be served in the community as a conditional sentence. D.C. is to live with his grandmother, a situation that has worked well since he has been on bail. For the first year, this will be a strict house arrest, with an exception for attendance at work, for medical appointments and emergencies, and other necessary requirements of daily living, the details of which will be worked out after delivery of these reasons. The second year will have reduced restrictions, a curfew rather than strict house arrest.

180This will be followed by a period of probation for 3 years with the usual statutory conditions. Throughout the conditional sentence and probation, D.C. will be required to attend for counselling and programs recommended by his supervisor directed towards understanding sexuality, consent, and personal boundaries. He will be required to sign releases so that his supervisor can monitor his progress. I will hear submissions from counsel as to any other terms they propose.

181The complainant in this case has, at least at this point, expressed a fear of seeing her brother. This must be respected. At least from the beginning of the sentence, there will be a strict non-contact provision. However, I recognize that D.C. has also lost his family. I am advised that the complainant is engaged with supportive organizations in the community. It would likely be beneficial to everyone if family reunification could eventually be achieved. However, I recognize this will not happen immediately and may be an impossible goal in all the circumstances. If the complainant is interested in working towards this goal, some variation of the sentence and/or probation terms would be required in the future. However, this will only be considered if the complainant gives free and informed consent. She must not be pressured towards that end.

MOLLOY J.

Released: June 3, 2026

CITATION: R. v. D.C., 2026 ONSC 3029

COURT FILE NO.: CR-24-30000035-0000

DATE: 20260603

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

and -

D.C.

Defendant/Applicant

REASONS FOR DECISION

Molloy J.

Released: June 3, 2026

[^^82]: Hills, at para. 135.

Footnotes

Criminal Code of Canada, R.S.C., 1985, c. C-46 (the “Criminal Code”).
Youth Criminal Justice Act, SC 2002, c. 1 (the “YCJA”).
Canadian Charter of Rights and Freedoms.
R. v. D.C., 2025 ONSC 3462.
R. v. I.M., 2025 SCC 23, 505 D.L.R. (4th) 1.
R. v. D.C., at paras. 70-71.
I.M., at para. 89.
R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3.
I.M., at para. 96
I.M., at paras. 101-102. [Citations omitted.]
D.B., at para. 95.
Ibid, at para. 46.
Ibid, at paras. 111 and 112.
R. v. I.M., at paras. 150-156.
Weatherall v. Canada (Attorney General), 1993 112 (SCC), [1993] 2 S.C.R. 872 (S.C.C.), at pp. 874.
Eldridge v. British Columbia (Attorney General), 1997 327 (SCC), [1997] 3 S.C.R. 624 (S.C.C.), at para. 79.
Criminal Code, at s. 718.1.
R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500 (S.C.C), at para. 91; see also paras. ***
R. v. D.C., at paras. 31- 43.
Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.
Criminal Code, ss. 718.2 (d) and (e).
Criminal Code, s. 718.1.
Quebec (Attorney General) v. Senneville, 2025 SCC 33, at para. 35; see also R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 40-42.
Senneville, at para. 38.
Senneville, at para. 48.
R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 57.
Senneville, at para. 47, citing R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at paras. 63-64.
Senneville, paras. 53-54.
Senneville, at para. 56.
Ibid, at para. 57.
Senneville, at para. 63, citing Nur, at para. 68.
Ibid.
R. v. Hill, 2023 SCC 2, 1 S.C.R. 6, at para. 86.
Ibid, at paras. 89-90.
R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 130.
Friesen, at para. 114; see also R. v. D.(D.) (2004), 2002 44915 (ON CA), 58 O.R. (3d) 788 (Ont. C.A), at para. 33.
R. v. G.A., [1998] O.J. No. 2039 (Ont. Gen. Div.); R. v. R.P.F., 1996 NSCA 72, 149 N.S.R. (2d) 91; R. v. S.K., [1992] O.J. No. 1 (Ont. C.A.); R. v. J.A., [1984] N.W.T. No. 29 (S.C.); R. v. G.B., [1982] N.W.T. No. 40 (S.C.).
R. v. D.B., 2025 ONCA 577, 178 O.R. (3d) 214, at paras. 11-14.
R. v. D.N., 2024 ONCJ 509, at paras. 29-30. See also, R. v. C.J.R., 2025 ONSC 6905.
R. v. Warren, 2024 ONSC 2785, at paras. 135-136 and 140.
I.M., at para. 41.
R. v. Oguntoyinbo, 2026 ONCA 320; R. v. Bertrand Marshall, 2023 SCC 26, 487 D.L.R. (4th) 201, at paras. 91-93.
R. v. Jewell (1995), 1995 1897 (ON CA), 100 C.C.C. (3d) 270 (Ont. C.A.).
R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 57-58.
Friesen, at para. 106.
R. v. Fireman, 1971 450 (ON CA), [1971] 3 O.R. 380. (C.A.)
R. v. M.M., 2022 ONCA 441, at para. 16.
Friesen, at para. 91.
R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, at paras. 64-65.
R. v. Hood, 2018 NSCA 18, 45 C.R. (7th) 269, at para. 180.
R. v. A.L., 2025 ONCA 9, 100 C.R. (7th) 176, at para. 24, quoting the trial judge.
Ibid, at para. 25.
R. v. Collins, 2023 ONSC 5768 at para. 90, see also paras. 73-79.
A.L., at paras. 19-21.
Senneville, at para. 59.
Senneville, at paras. 61-75.
R. v. S.M.C. , 2021 QCCQ 3498; R. v. C.M.S.M. , 2019 NBPC 14; R. v. M.J.W., 2011 NSPC 33; R. v. G.A., [1998] O.J. No. 2039 (OCJ(GD)); R. v. R.P.F.. 1996 NSCA 72; R. v. J.A. [1984] N.W.T. No. 29 (S.C.); R. v. G.B; R. v. B. (G.), 1982 4937 (NWT SC), [1984] N.W.T.R. 205 (S.C.)..
See R. v. P.T., 2025 ONCJ 504, at para. 78, citing R. v. A.L. 2025 ONCA 9, 100 C.R. (7th) 176 at paras. 19 to 21, for a review of recent sentences under 2 years for sex offence against a child: R. v. Singaqti, 2024 NUCA 10, at para. 15; R. v. T.J.H., 2023 YKCA 2, at para. 27; R. v. Germain, 2022 ABCA 257, at paras. 84, 85; R. v. R.B.B., 2024 NSCA 17, at paras. 41, 45
R. v. M.R.M., 2019 ONCS 297, 2019 ONSC 297, at para. 90.
Ibid, at para. 56.
Ibid, at para. 71.
Ibid, at para. 73.
Ibid, at para. 77.
Ibid, at paras. 80-81.
Ibid, at para. 79.
R. v. C.L., 2012 ONCA 835.
Ibid, at para. 7.
M.R.M., at para. 90.
R. v. M.R.M., 2020 ONCA 75, at para. 18. Subsequently, the appeal was dismissed as abandoned by Order dated April 14, 2022.
R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460.
Ibid, para. 6.
R. v. Hills, 2023 SCC 2, [2023] 1 S.C.R. 6; R. v. Bertrand Marchand.
Hills, at paras. 89-90.
Bertrand Marchand, at para. 116.
Senneville, at paras. 65-66 and 74-75.
Nur, at para. 71.
Hills, at para. 47.
Senneville, at para. 41.
Hills, at para. 122; Senneville, para. 42.
Senneville, at para. 44.
Hills, at para. 125.
R. v. Mohenu, 2019 ONCA 291, at para. 12; R v. JFK, 2023 ABPC 28, at para. 59.
Hills, at para. 48.
See Nur, at para. 114.
R. v. Bissonnette, 2022 SCC 23, [2022] 1 S.C.R. 597, at para. 121.

Footnotes

Criminal Code of Canada, R.S.C., 1985, c. C-46 (the “Criminal Code”).
Youth Criminal Justice Act, SC 2002, c. 1 (the “YCJA”).
Canadian Charter of Rights and Freedoms.
R. v. D.C., 2025 ONSC 3462.
R. v. I.M., 2025 SCC 23, 505 D.L.R. (4th) 1.
R. v. D.C., at paras. 70-71.
I.M., at para. 89.
R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3.
I.M., at para. 96
I.M., at paras. 101-102. [Citations omitted.]
D.B., at para. 95.
Ibid, at para. 46.
Ibid, at paras. 111 and 112.
R. v. I.M., at paras. 150-156.
Weatherall v. Canada (Attorney General), 1993 112 (SCC), [1993] 2 S.C.R. 872 (S.C.C.), at pp. 874.
Eldridge v. British Columbia (Attorney General), 1997 327 (SCC), [1997] 3 S.C.R. 624 (S.C.C.), at para. 79.
Criminal Code, at s. 718.1.
R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500 (S.C.C), at para. 91; see also paras. ***
R. v. D.C., at paras. 31- 43.
Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.
Criminal Code, ss. 718.2 (d) and (e).
Criminal Code, s. 718.1.
Quebec (Attorney General) v. Senneville, 2025 SCC 33, at para. 35; see also R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 40-42.
Senneville, at para. 38.
Senneville, at para. 48.
R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 57.
Senneville, at para. 47, citing R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at paras. 63-64.
Senneville, paras. 53-54.
Senneville, at para. 56.
Ibid, at para. 57.
Senneville, at para. 63, citing Nur, at para. 68.
Ibid.
R. v. Hill, 2023 SCC 2, 1 S.C.R. 6, at para. 86.
Ibid, at paras. 89-90.
R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 130.
Friesen, at para. 114; see also R. v. D.(D.) (2004), 2002 44915 (ON CA), 58 O.R. (3d) 788 (Ont. C.A), at para. 33.
R. v. G.A., [1998] O.J. No. 2039 (Ont. Gen. Div.); R. v. R.P.F., 1996 NSCA 72, 149 N.S.R. (2d) 91; R. v. S.K., [1992] O.J. No. 1 (Ont. C.A.); R. v. J.A., [1984] N.W.T. No. 29 (S.C.); R. v. G.B., [1982] N.W.T. No. 40 (S.C.).
R. v. D.B., 2025 ONCA 577, 178 O.R. (3d) 214, at paras. 11-14.
R. v. D.N., 2024 ONCJ 509, at paras. 29-30. See also, R. v. C.J.R., 2025 ONSC 6905.
R. v. Warren, 2024 ONSC 2785, at paras. 135-136 and 140.
I.M., at para. 41.
R. v. Oguntoyinbo, 2026 ONCA 320; R. v. Bertrand Marshall, 2023 SCC 26, 487 D.L.R. (4th) 201, at paras. 91-93.
R. v. Jewell (1995), 1995 1897 (ON CA), 100 C.C.C. (3d) 270 (Ont. C.A.).
R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 57-58.
Friesen, at para. 106.
R. v. Fireman, 1971 450 (ON CA), [1971] 3 O.R. 380. (C.A.)
R. v. M.M., 2022 ONCA 441, at para. 16.
Friesen, at para. 91.
R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, at paras. 64-65.
R. v. Hood, 2018 NSCA 18, 45 C.R. (7th) 269, at para. 180.
R. v. A.L., 2025 ONCA 9, 100 C.R. (7th) 176, at para. 24, quoting the trial judge.
Ibid, at para. 25.
R. v. Collins, 2023 ONSC 5768 at para. 90, see also paras. 73-79.
A.L., at paras. 19-21.
Senneville, at para. 59.
Senneville, at paras. 61-75.
R. v. S.M.C. , 2021 QCCQ 3498; R. v. C.M.S.M. , 2019 NBPC 14; R. v. M.J.W., 2011 NSPC 33; R. v. G.A., [1998] O.J. No. 2039 (OCJ(GD)); R. v. R.P.F.. 1996 NSCA 72; R. v. J.A. [1984] N.W.T. No. 29 (S.C.); R. v. G.B; R. v. B. (G.), 1982 4937 (NWT SC), [1984] N.W.T.R. 205 (S.C.)..
See R. v. P.T., 2025 ONCJ 504, at para. 78, citing R. v. A.L. 2025 ONCA 9, 100 C.R. (7th) 176 at paras. 19 to 21, for a review of recent sentences under 2 years for sex offence against a child: R. v. Singaqti, 2024 NUCA 10, at para. 15; R. v. T.J.H., 2023 YKCA 2, at para. 27; R. v. Germain, 2022 ABCA 257, at paras. 84, 85; R. v. R.B.B., 2024 NSCA 17, at paras. 41, 45
R. v. M.R.M., 2019 ONCS 297, 2019 ONSC 297, at para. 90.
Ibid, at para. 56.
Ibid, at para. 71.
Ibid, at para. 73.
Ibid, at para. 77.
Ibid, at paras. 80-81.
Ibid, at para. 79.
R. v. C.L., 2012 ONCA 835.
Ibid, at para. 7.
M.R.M., at para. 90.
R. v. M.R.M., 2020 ONCA 75, at para. 18. Subsequently, the appeal was dismissed as abandoned by Order dated April 14, 2022.
R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460.
Ibid, para. 6.
R. v. Hills, 2023 SCC 2, [2023] 1 S.C.R. 6; R. v. Bertrand Marchand.
Hills, at paras. 89-90.
Bertrand Marchand, at para. 116.
Senneville, at paras. 65-66 and 74-75.
Nur, at para. 71.
Hills, at para. 47.
Senneville, at para. 41.
Hills, at para. 122; Senneville, para. 42.
Senneville, at para. 44.
Hills, at para. 125.
R. v. Mohenu, 2019 ONCA 291, at para. 12; R v. JFK, 2023 ABPC 28, at para. 59.
Hills, at para. 48.
See Nur, at para. 114.
R. v. Bissonnette, 2022 SCC 23, [2022] 1 S.C.R. 597, at para. 121.