Canadian Courts dDenounce Mandatory Minimum Sentencing for Sexual Offences

Several recent decisions in Canadian courts have found mandatory minimum sentences for various sexual-related offences, including possession of child pornography, to be inappropriate and in violation of an individual’s Charter rights. A key criticism of the mandatory minimum is that it “casts its net over a wide range of potential conduct” as noted in R. v. Nur (2013), and can result in grossly inappropriate sentences in circumstances involving a low-level offence.

Consider an example given in R. v. Drumonde (2013): a 90-day jail sentence for a minimally intrusive sexual assault involving a young first offender who had a one-time lapse in judgement and kissed a 15-year-old unwantedly, would be grossly disproportionate and outrage society’s standards of decency. The majority in Nur concluded that mandatory minimum sentencing does not, in fact, achieve one of the purposes for which it was intended, which is to deter crimes from occurring.

Here are several recent cases where the courts found that mandatory minimum sentencing is unconstitutional.

In R. v. Swaby (2018), the B.C. Court of Appeal agreed with a lower court that the mandatory minimum jail term of 90 days was “grossly disproportionate” with respect to the more fitting punishment of a conditional sentence. The Appeal Court stated that the mandatory minimum violates s. 12 of the Canadian Charter of Rights and Freedoms (which protects the right to be free of cruel and unusual punishment) for the accused and for all potential offenders).

Swaby involved a man who pleaded guilty to the charge of possession of child pornography. The pornographic materials were found after the RCMP conducted an investigation of file-sharing networks. RCMP found the accused in possession of 400 video files containing child pornography on his two computers. The accused man was 23-years-old but two psychologists who assessed the man’s cognitive and intellectual abilities agreed that he had a significant level of cognitive impairment. And, one of the psychologists testified that incarceration would be very detrimental to the ‘young and vulnerable’ defendant.

Because the case was tried as a summary conviction offence, the man faced a 90-day mandatory minimum sentence as set out in the Criminal Code, s. 163.1(4). However, the trial judge and Court of Appeal found that the mandatory minimum sentence was “of no force and effect” and a conditional sentence was the appropriate sentence given the circumstances of the offence. Characteristics of the defendant and mitigating factors that were considered in determining the sentence, in this case, are: he has no criminal record and is fairly young; he lived with his mother and spent most of his time alone; he has cognitive and mental health issues; he expressed remorse, gave an early guilty plea and co-operated with police; he was willing to be assessed and treated; he is not a paedophile, and he complied with bail conditions.

R. v. Zhang (2018) similarly concerns a man who was arrested on the charge of possession of child pornography and the Crown decided to proceed by summary conviction. And as in the previous case, the defence challenged the mandatory minimum sentence of six months in jail on the basis that would breach the accused’s s. 12 Charter rights and is of no force and effect with regards to sentences, pursuant to s. 24(1) of the Charter. Justice Bentley agreed that the mandatory minimum in s. 163.1(4) is unconstitutional and would not apply in Zhang. The judge further stated a proportionate sentence for a young man with no record would be a suspended sentence and probation, while incarceration for six months would be grossly disproportionate “and the public would find it abhorrent and intolerable”.

In R. v. Boodhoo and others (2018), an Ontario Court ruled that the mandatory minimums for several sexual offences violate s. 12 of the Charter. In Boodhoo, a jury found three men guilty of receiving material benefit from sexual services provided by a person under the age of 18 years, s. 286.2(2), and procuring a person under the age of 18 years, s. 286.3(2). Two of the defendants were also found guilty of distributing child pornography, s. 163.1(3), and advertising sexual services, 286.4. Under the Criminal Code, the mandatory minimum sentences if someone is convicted of the above crimes is two years under s. 286.2(2), five years under s. 286.3(2), and one year under s. 163.1(3).

The offences in Boodhoo took place over a six-week period, beginning approximately one month after the victim’s 16th birthday. After being thrown out of her mother’s house for smoking marijuana and skipping school, the 16-year-old girl met one of the defendants, Mr. Chisholm, on a bus. At a second meeting, Mr. Chisholm and the young girl agreed that she would serve as an escort for 60 per cent of the profits while Mr. Chisholm would be given 40 per cent for advertising, renting rooms and dealing with customers. Another of the defendants joined the first two after a few days and took additional photos of the girl to post on the internet. The original arrangement was that the girl could quit when she wished, but she complained that she was instead compelled to continue sex work for about six weeks and the defendants kept all the money.

In Boodhoo, Justice Bale referred to R. v. Safieh (2018) where the Court held that the five-year mandatory minimum sentence for procuring a person under the age of 18 years is inconsistent with the Charter and has no force or effect. In Safieh, the judge gave a hypothetical example of an abused 18-year-old sex worker with addictions who assists her pimp in recruiting a 16-year-old to be an escort. In this case, the offender is herself a victim of abuse and if the courts fail to take special circumstances such as these into account, it would re-victimize the offender and is not consistent with the underlying objective of mandatory minimums, which is to protect children. Justice Bale noted that the offending section of the Charter is no longer in force or binding when a judge with inherent jurisdiction has made a declaration that a law is in breach of the Charter (unless the decision is changed on appeal). Accordingly, Justice Bale concluded the five-year minimum in 286.3 (2) of the Code is no longer in force.

Justice Bale also agreed with the decision in R. v. Robitaille (2017), where Justice Greene found that an 8-month sentence was appropriate given the circumstances of the case. On the other hand, the two-year mandatory minimum sentence for ‘material benefit from sexual services provided by person under 18 years’ would be grossly disproportionate and is inconsistent with s. 12 and in 286.2(3) of the Code.

Finally, with respect to the offence of the distribution of child pornography s. 163.1(3), Justice Bale criticized mandatory minimum sentences for failing to take into consideration many relevant questions, including the number of photos being distributed, how many people were given access to the images, the age of the person in the image, the defendant’s age, the exact nature of the images, and whether any other crimes were committed in obtaining the images. Justice Bale referred to R. v. John (2017) where the court found that mandatory minimum sentencing is entirely unnecessary, rather, the sentence for offences involving abuse of a child should be based on the objectives of denunciation and deterrence, as has been recently emphasized in the courts.

R. v. Drumonde (2018) is a case involving a man and woman who were charged with, and found guilty of, sexual assault and sexual interference; however, the sexual assault charge was later stayed for both defendants. The Crown proceeded summarily on the charge of sexual interference only, for which the mandatory minimum sentence is 90 days in jail. The trial, R. v. Drumonde was to decide sentencing of the female defendant, Ms. Drumonde.

Sexual inference is considered a specific intent offence involving the touching of the body of a child under the age of 16, for a sexual purpose.

The defendants challenged the unconstitutionality of the mandatory minimum sentence. Following an analysis of the facts of the case, Justice Pringle decided that although the mandatory minimum sentence under s. 151(b) does not violate the Charter for the female defendant given the circumstances of the case, it does in fact violate S. 12 of the Charter when applied to reasonably foreseeable applications.

The male offender, Mr. Chan, was a 31-year-old math tutor who developed an inappropriate relationship with a vulnerable 14-year-old student who had been struggling with depression. Ms. Drumonde was Mr. Chan’s 21-year-old fiancée at the time of the offence and she joined the relationship with the young girl, which was characterized by daily meetings between the three over several months, where they kissed, hugged and held hands. Ms. Drumonde genuinely empathized with the young girl’s distress at home, but encouraged an intense relationship by writing romantic letters to the 14-year-old while the latter was at camp. The Children’s Aid Society discovered the letters and ordered the two defendants to terminate their relationship with the girl, but within a week, Ms. Drumonde began to again communicate regularly on line and via a third party.

In Drumonde, Justice Pringle rejected the Crown’s assertions that the defendants lured the young girl for sexual gratification. The judge concluded that the two defendants genuinely cared for the young girl and began the relationship with good intentions. Further, the touching and kissing only occurred while all three were fully clothed. However, the judge found that the relationship was intense and inappropriate and some of the touching had a sexual element that violated the young girl’s integrity. The judge sentenced Ms. Drumonde to a conditional sentence of 45 days to be served in the community, followed by three years probation.

Many of the mandatory minimum sentences set out by the Canadian Parliament, particularly during the former Conservative government, have been struck down, not only for crimes of a sexual nature but also for many other offences. In a seminal case, R. v. Smith (1987), concerning a 27-year-old man who was discovered with seven ounces of cocaine when coming into Canada from Bolivia, the Supreme Court of Canada declared that the 7-year mandatory minimum sentence set out in the Narcotics Control Act violates s. 12 of the Charter. The Court pointed out that a young first offender bringing a joint across the border could hypothetically be prosecuted and subject to the 7-year minimum sentence, which would clearly be cruel and disproportionate punishment. In deciding the appropriate sentencing, the Court should consider the seriousness of the offence, the specific facts of the case and the offender’s characteristics.

If you have been charged with a sexual-related offence, talk to a highly experienced sex crimes lawyer at Kruse Law. At Kruse Law, we offer a wealth of experience and knowledge in defending persons accused of sexual assault and other sexual offences and will fight to achieve the best possible result for your case.