R v EJB, 2017 ABQB 726

Court of Queen’s Bench of Alberta Citation: R v EJB, 2017 ABQB 726 Date: 20171128 Docket: 140728866Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - E.J.B. Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Reasons for Decision of the Honourable Madam Justice K.M. Horner _______________________________________________________ I. Overview

[ 1 ] This application deals with the constitutionality of section 153(1.1) (

a) of the Criminal Code , RSC 1985, c C-46 (as it appeared in March 2013). The Accused, E.J.B., is seeking a declaration that the one year mandatory minimum sentence in section 153(1.1) (

a) violates

section 12 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11. As a remedy, EJB asks this Court to strike down the mandatory minimum pursuant to section 52(1) of the Constitution Act, 1982 ,

Schedule B to the Canada Act 1982 (UK), 1982, c 11. [ 2 ] For the reasons outlined below, I find that section 153(1.1) (

a) of the Criminal Code (as it appeared in March 2013) violates

section 12 of the Charter and declare its mandatory minimum to be of no force or effect. II. Background A. Facts [ 3 ] EJB is a married father of three children. He has admitted to engaging in sexual relations with the Victim, his then-16 year old niece by marriage, over a period of approximately three months. EJB was 35 years old at the time of the sexual relationship. [ 4 ] In December 2012, the Victim began living with EJB, his wife, and children. The Victim was a troubled and rebellious youth who previously left her parents’ home to reside with her grandparents.

She was later allowed to move in with EJB and his family, and remained there on the consent of her father, stepmother, and grandparents. The Victim did not have a close relationship with EJB and his family prior to moving into their home. Afterwards, she was not treated as an integral part of the family. [ 5 ] In March 2013, the Victim aggressively initiated a consensual sexual relationship with EJB, which lasted approximately three months. This relationship led to EJB engaging in sexual acts with the Victim on approximately four to six separate occasions.

Those acts included digital penetration, oral sex, and vaginal sex. [ 6 ] On May 25, 2013, the relationship between EJB and the Victim ended when EJB’s wife walked in on them having sexual intercourse. The Victim’s response to being discovered was to smile, smirk, or laugh at EJB’s wife. [ 7 ] In June 2013, EJB admitted the extent of his sexual relationship with the Victim to police.

EJB was charged with three counts of offences of sexual misconduct, including one count of having sexual contact with a young person while in a position of trust or authority contrary to section 153(1) of the Criminal Code . [ 8 ] On April 22, 2016, EJB was acquitted at trial on all three counts. EJB was acquitted on the count relating to section 153(1) because, while technically in a position of trust and authority, he exercised no actual control over the Victim.

The Crown appealed the acquittal. [ 9 ] On June 8, 2017, the Court of Appeal in R v EJB , 2017 ABCA 176 , overturned the acquittal of EJB on the count relating to section 153(1) , substituted a guilty verdict, and remitted the matter back to this Court for sentencing. The Court of Appeal found no error in any of the findings of fact at trial, but held that the nature and quality of EJB’s position of trust and authority was irrelevant under section 153(1) . [ 10 ] On July 11, 2017, EJB filed a Notice of Constitutional Application challenging the constitutionality of section 153(1.1) (

a) on the grounds that it violates both

section 7 and 12 of the Charter . EJB subsequently notified this Court that he is no longer pursuing a

section 7 challenge. B. Positions of the Parties [ 11 ] EJB argues that section 153(1.1) (a)’s one year mandatory minimum sentence violates

section 12 of the Charter because it is grossly disproportionate when applied to both himself and a hypothetical offender in reasonably foreseeable circumstances. Further, EJB argues that this violation of

section 12 cannot be justified under

section 1 of the Charter . As a result, the only remedy available is to strike down the mandatory minimum pursuant to section 52(1) of the Constitution Act, 1982 . [ 12 ] EJB’s

section 12 argument is premised on the position that a fit and proportionate sentence in the circumstances is a conditional sentence order (“ CSO ”), suspended sentence, or, at most, an intermittent sentence of 90 days’ imprisonment. This conclusion stems from his assertion that a fit and proportionate sentence should be determined without regard to both section 153(1.1) (a)’s mandatory minimum and its current maximum sentence of 14 years imprisonment (which each independently preclude the availability of a conditional sentence order). [ 13 ] His

section 1 argument is that section 153(1.1) (a)’s grossly disproportionate mandatory minimum cannot be justified in a free and democratic society. This conclusion stems from the assertion that, while there is a rational connection between the mandatory minimum and the goal of protecting young persons, such a sentence does not minimally impair EJB’s

section 12 rights. Nor is there any proportionality between the mandatory minimum’s deleterious and salutary effects. [ 14 ] The Crown argues that the constitutionality of section 153(1.1) (a)’s one year mandatory minimum is moot because Alberta’s Court of Appeal has already established a starting point sentence of four years for major sexual assaults which it argues should apply in this case. Therefore, this Court should decline to consider EJB’s Charter challenge on the grounds that constitutional analysis is not required where a mandatory minimum is a moot issue. [ 15 ] Alternatively, the Crown argues that section 153(1.1) (

a) does not violate

section 12 of the Charter . This argument is premised on the position that section 153(1.1) (a)’s mandatory minimum is not grossly disproportionate as applied to EJB, as a fit and proportionate sentence in the circumstances is four years or more. Nor is the mandatory minimum grossly disproportionate as applied to a hypothetical

offender, as the reasonable hypothetical provided by EJB is far-fetched or remotely imaginable. [ 16 ] The Crown concedes that, should section 153(1.1) (

a) violate

section 12 , it cannot be saved by

section 1 of the Charter . III. Issues [ 17 ] The following issues arise as a result of the hearing of this matter: 1) Does the mandatory minimum in section 153(1.1) (

a) of the Criminal Code as it read at the time of the offence violate

section 12 of the Charter ? 2) If the mandatory minimum in section 153(1.1) (

a) of the Criminal Code as it read at the time of the offence violates

section 12 of the Charter , can it be justified under

section 1 of the Charter ? IV. Statutory Framework A.

Section 153 of the Criminal Code and Conditional Sentence Orders [ 18 ] In 2005, Parliament first included mandatory minimum sentences in

section 153 of the Criminal Code . At that time, section 153(1.1) (

a) imposed a mandatory minimum of 45 days’ imprisonment and a maximum sentence of 10 years’ imprisonment for anyone convicted of sexual exploitation by way of indictment. In 2012, the mandatory minimum was increased from 45 days to one year imprisonment. In 2015, the maximum sentence was also increased from 10 years to 14 years’ imprisonment. Today, section 153(1.1)(

a) imposes a mandatory minimum sentence of one year imprisonment and a maximum sentence of 14 years’ imprisonment. [ 19 ]

Section 11(

i) of the Charter entitles EJB to be sentenced under section 153(1.1)(

a) as it appeared at the time of the offence. In March 2013, at the time of the offence,

section 153 read as follows: Sexual exploitation 153

(1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who (

a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or (

b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person. Punishment

(1.1) Every person who commits an offence under subsection (1) (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days. ... [ 20 ] A conditional sentence order is not currently available to an offender sentenced under section 153(1.1)(

a) because the

section includes both a maximum sentence of 14 years’ imprisonment and a one year mandatory minimum: Criminal Code , s 742.1(b)-(c). At the time of the offence, however, section 153(1.1)(

a) included a maximum sentence of only 10 years’ imprisonment. Therefore, should section 153(1.1)(a)’s mandatory minimum be struck down, a conditional sentence order would be available to the Accused. [ 21 ]

Section 742.1 of the Criminal Code permits a conditional sentence to be imposed when an offender is sentenced to a term of imprisonment of less than two years. Such a sentence is only warranted, however, when it would not endanger public safety, and either a custodial sentence or a term of probation is inappropriate. These restrictions are due to a conditional sentence still qualifying as a punitive punishment, but one that is justifiable in circumstances where the objectives of denunciation and deterrence can still be met without the need for incarceration: R v Proulx , 2000 SCC 5 at paras 35-36 . B.

Section 12 of the Charter and Mandatory Minimum Sentences [ 22 ]

Section 12 of the Charter makes it unconstitutional to subject an offender to a term of imprisonment that constitutes cruel and unusual punishment: Treatment or punishment

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [23] Section 153(1.1)(a)’s mandatory minimum will constitute cruel and unusual punishment if it imposes a sentence that isgrossly disproportionate to the punishment an offender would otherwise receive in the circumstances. However, even if section 153(1.1)(

a) offends

section 12, its mandatory minimum may still be justified under

section 1 of the Charter: Rights and freedoms in Canada 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limitsprescribed by law as can be demonstrably justified in a free and democratic society. [24] If the mandatory minimum’s violation of

section 12 is not justified by

section 1, then the only remedy available is to declaresection 153(1.1)(a) (as it appeared in March 2013) to be of “no force or effect to the extent that it is inconsistent with the Charter”: R vFerguson, 2008 SCC 6 at para 59. Such a remedy requires the mandatory minimum to be struck down pursuant to section 52(1) of theConstitution Act, 1982: Ferguson at paras 54-56. V. Analysis [25] As a preliminary issue, the Crown argues that this Court should decline to analyze the constitutionality of section 153(1.1)(a)because the appropriate sentence in the circumstances greatly exceeds the mandatory minimum.

As authority for this proposition, theCrown cites, among others, R v Lloyd, 2016 SCC 13, which deals with the constitutionality of the one year mandatory minimum insection 5(3)(a)(i)(

D) of the Controlled Drugs and Substances Act, SC 1996, c 19. [26] In Lloyd, a majority of the Supreme Court held that the impugned mandatory minimum was grossly disproportionate asapplied to hypothetical offenders, but not as applied to the specific offender in that case. In doing so, McLachlin C.J.C. at para 18explains when the doctrine of mootness allows a court (in that case a provincial court) to decline to hear a

section 12 challenge: To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimumprovision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squandertime and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this casedetermined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he couldhave declined to consider its constitutionality.

To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issuearises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in thecase. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender's sentence, as acondition precedent to considering the law's constitutional validity, would place artificial constraints on the trial and decision-makingprocess. [27] McLachlin C.J.C.’s reasoning is equally applicable to a matter heard before a superior court.

Accordingly, this Court retainsthe discretion to consider EJB’s

section 12 challenge even if the constitutionality of section 153(1.1)(

a) is a moot issue in thecircumstances. Further, there is no requirement to determine mootness prior to engaging in a

section 12 analysis. Therefore, regardless ofwhether the mandatory minimum has an impact on EJB’s sentencing, this Court will still exercise its discretion to determine section153(1.1)(a)’s constitutionality. [28] The justification for exercising discretion in this case is conceptually similar to the reasoning of Veit J. in R v Ford, 2017ABQB 322 at paras 23-35. In short, determining the constitutionality of section 153(1.1)(

a) is important to EJB, future offenders whomay violate section 153(1), and the interests of justice in general. As the matter is properly before this Court, and the parties haveobviously expended a considerable amount of time and resources in preparing for this application, concerns of judicial economy dictatethat a determination should be made. 1) Does the Mandatory Minimum in Section 153(1.1)(

a) ViolateSection 12 of the Charter? [29] In R v Nur, 2015 SCC 15 at para 46, referring to the principles outlined in R v Smith, [1987] 1 SCR 1045, atparas 56-57 (SCC), McLachlin C.J.C. (for the majority) summarizes the two-step analysis for determining whether a mandatoryminimum sentence is grossly disproportionate:

(1) Fit and Proportionate Sentence: “[T]he court must determine what constitutes a proportionate sentence for the offence havingregard to the objectives and principles of sentencing in [sections 718 to 718.2 of] the Criminal Code”; and

(2) Effect of the Mandatory Minimum: “[T]he court must ask whether the mandatory minimum requires the judge to impose asentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the mandatory minimum provision isinconsistent with s. 12 and will fall unless justified under s. 1 of the Charter.” [30] To be clear, the second step in the

section 12 analysis allows this Court to determine the effect of the mandatory minimum on:(

a) EJB in the present circumstances; and (

b) a hypothetical offender in reasonably foreseeable circumstances: Nur at para 77; R v Goltz, (SCC), [1991] 3 SCR 485, 1991 CarswellBC 280 at para 73 (SCC).

A. Step One: Fit and Proportionate Sentence [31] Step one of the

section 12 analysis requires this Court to determine a range of sentences that would otherwise be proportionateif section 153(1.1)(

a) did not impose a one year mandatory minimum. In Nur at paras 40-42, McLachlin C.J.C. explains how this rangeshould be constructed: In determining an appropriate sentence for purposes of the comparison demanded by this analysis, regard must be had to the sentencingobjectives in s. 718 of the Criminal Code, which instructs the sentencing judge as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance 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; (

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

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in s. 718.2(a)(

i) to (iv); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed insimilar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not beunduly long or harsh (s. 718.2 (c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(

d) and(e)). In reconciling these different goals, the fundamental principle of sentencing under s. 718.1 of the Criminal Code is that "[a] sentencemust be proportionate to the gravity of the offence and the degree of responsibility of the offender." [32] This Court must also have special regard for

section 718.01 of the Criminal Code, which dictates that denunciation anddeterrence are the primary considerations when imposing a sentence for offences involving the abuse of persons under the age of 18. i. Submissions of the Parties [33] EJB argues that a fit and proportionate sentence in the circumstances is a conditional sentence order, suspended sentence plusprobation, or, at most, an intermittent sentence of up to 90 days’ imprisonment plus probation. This submission is based on thepunishments available to offenders prior to the inclusion of the one year mandatory minimum in section 153(1.1)(a).

EJB also relies onthe following mitigating factors to justify his proposed sentencing range: (1) he is a first time offender who has otherwise led a blamelesslife and contributes greatly to his family and society; (2) the Victim initiated the sexual relationship; and (3) there is no apparent adverseeffect on the Victim as a result of the sexual relationship. [34] As authority for the appropriateness of a CSO, EJB cites the following cases: R v A (AG), 1998 ABQB 60 (23 month CSO); Rv A (DB), 2006 ABPC 63 (18 month CSO and 12 months’ probation); R v McCrackin, 2004 ABPC 2 (15 month CSO and 12 months’probation); R v Arsenault, 2004 NSSC 242 (12 month CSO and 36 months’ probation); R v Genge, 2004 NLSCTD 25 (14 month CSOand 12 months’ probation); R v C (M), 2000 BCPC 64 (8 month CSO); and R v Thaker, 2004 BCPC 126 (12 month CSO and 12months’ probation).

Since he asserts that a conditional sentence order is a fit and proportionate sentence in the circumstances, many ofhis authorities were decided prior to the 2005 introduction of section 153(1.1)(a)’s mandatory minimum sentence (i.e. when a CSO waslast available to offenders). [35] Even if a custodial sentence is imposed, EJB argues the appropriate sentencing range is between 90 days and six months’imprisonment.

As authority for this range, EJB cites the following authorities: R v O’Brien, 2016 ONCJ 549 (6 months’ imprisonmentand two years’ probation); R v S (C), 2014 ONCJ 371 (90 days’ intermittent and 3 years’ probation); R v Morden, 2013 NBQB 313 (6months’ imprisonment and one year probation); R v M (N), 2009 BCPC 281 (6 months’ imprisonment and 2 years’ probation); R vSmith, 2008 ONCJ 628 (90 days’ intermittent and 3 years’ probation); R v Smart, 14 BCAC 73, (BC CA) (6 months’imprisonment).

This sentencing range is based on the punishments available to offenders prior to the inclusion of the one year mandatoryminimum in section 153(1.1)(a), as well as those available following a

summary conviction under section 153(1.1)(b) [36] The Crown argues that a fit and proportionate sentence in the circumstances is four years’ imprisonment or more. Thisconclusion is based on the four year starting point sentence for a major sexual assault on a child by a person in a position of trust, whichwas first established in R v S (WB), 127 AR 65, (Alta CA), and later reiterated in R v RR, 1994 ABCA 77 ,and R v Hajar, 2016 ABCA 222.

The Crown also relies on the following aggravating factors to justify its proposed sentencing range: (1)approximately four to six incidents of sexual intercourse with the Victim; (2) a position of trust between the Accused and the Victim; and(3) a 20 year age disparity between the Accused and the Victim. [37] As authority for its sentencing range, the Crown cites the following cases: R v Vigon, 2016 ABCA 75 (four years’imprisonment); R v K (RT), 2014 ABCA 349 (three years’ imprisonment); R v Hood, 2011 ABCA 169 [Hood ABCA] (three and a halfyears’ imprisonment); and R v S (JB), 2009 ABCA 347 (six and a half years’ imprisonment).

The Crown also cites the decision in R vFertig, 2014 ABCA 317 (five years’ imprisonment). However, the only offence addressed in Fertig at para 1 is “for what would now besexual assault of a child.”

[ 38 ] The Crown argues that it would be inappropriate for this Court to rely on the authorities cited by EJB in determining a fit and proportionate sentence.

The Crown asserts that those authorities do not reflect the accurate severity of the offence and corresponding increase in sentencing range, as they predate the introduction of section 153(1.1)(a)’s one year mandatory minimum and other relevant legislative changes. [ 39 ] Despite their detailed submissions, I find that neither EJB nor the Crown has presented this Court with a sentencing range that accurately reflects a fit and proportionate sentence in the circumstances. EJB’s authorities are dated and many involve less egregious circumstances than those before this Court.

Conversely, while the Crown’s authorities more accurately reflect the appropriate sentencing principles, they also involve circumstances that are far more egregious. [ 40 ] Take for example three of the more relevant authorities cited by EJB: A (AG) , A (DB) , and O’Brien . [ 41 ] In A (AG) , Johnstone J. finds that a 23 month conditional sentence order is an appropriate punishment for an offender convicted under section 153(1) (

a) prior to the introduction of a mandatory minimum sentence in 2005. The 33 year old aboriginal offender began a sexual relationship with his niece, who was half his age, during which they engaged in sexual intercourse or oral sex on at least ten separate occasions. At the time of the offence, the offender lived with, had custody of, and was a father figure to the victim. The relationship only ended when the victim moved out of the offender’s home. Prior to sentencing, the Court had little information on the relationship’s effect on the victim.

In constructing its sentence, the Court also took special note that the offender was aboriginal and had previously been a victim of child abuse. [ 42 ] In A (DB) , Fradsham Prov. J. finds that a 18 month conditional sentence order and 12 months’ probation is an appropriate punishment for an offender convicted under section 153(1) (

a) prior to the introduction of a mandatory minimum sentence in 2005. The 34 year old offender, a teacher, began a sexual relationship with one of his students. The relationship involved frequent sexual acts, lasted approximately four and a half months, and only ended when it was discovered by the victim’s father. The Court did not find any practical benefit to the victim as a result of agreeing to or maintaining the relationship. However, the relationship had a negative impact on the victim, who had to finish the school year from home and was said to have “lost trust” in others.

In crafting its sentence, the Court took special note that the circumstances involved a student-teacher relationship and had the punishment-like effect of ending the offender’s teaching career. [ 43 ] In O’Brien , Baldwin J. finds that six months’ imprisonment followed by three years’ probation is an appropriate punishment for an offender convicted under section 153(1.1)(b). The 25 year old offender, a cheerleading instructor, had consensual sexual relations with a 16 year old cheerleader. The sexual relations occurred on at least four separate occasions and included oral and vaginal sex.

The offender began sexting the victim when she was only 15 years old, but did not engage in sexual relations with her until after her 16th birthday. The victim was described as especially vulnerable because of her mother’s ongoing health problems and family’s financial situation, which the offender preyed on for his own sexual gratification.

Baldwin J. concluded that a custodial sentence of any less than six months would not send the right denunciatory message due to the nature of the offence and harm to the victim. [ 44 ] Conversely, take for example the four most relevant authorities cited by the Crown : S (JB) , Vigon , Hood ABCA , and K (RT) . [ 45 ] In S (JB) , our Court of Appeal unanimously held that six and a half years’ imprisonment was an appropriate punishment for an offender sentenced under section 153(1.1)(a). At the time of the offence, the offender was 26 years older than the victim, who was his former common law stepdaughter.

The offender raised the victim since she was seven years old, but his relationship with the victim’s mother had already ended by the time the sexual relationship began. The three still lived together, however, as roommates. With the mother’s consent, the victim moved into the offender’s bedroom and regularly engaged in sexual intercourse with him over a period of two and a half years. The relationship was considered consensual for the first six months, after which the victim became trapped and isolated.

When the victim eventually ended the relationship, the offender threatened her life and physically assaulted her. The Court of Appeal held that the “stepparent/child relationship, the length and nature of the sexual relationship and the associated social isolation [the victim] experienced put the [offender] at the higher end of moral blameworthiness.” [ 46 ] In Vigon , a majority of our Court of Appeal held that four years’ imprisonment (as part of a larger global sentence) was an appropriate punishment for an offender sentenced under section 153(1.1)(a).

The offender was 19 years older than the victim and acted as, among other things, her basketball coach and part-time employer. He was described as her “life coach” and “mentor.” The offender began grooming the victim when she was 15, engaged in frequent sexual intercourse with her after her 16 th birthday, and continued the sexual relationship until the victim broke it off after she turned 18 years old. The offender was found to have isolated the victim from her family and friends and actively prevented her from ending the relationship through non-physical coercion.

The offender was also found to have actively used his multi-faceted trust and authority to prolong the sexual relationship, while his actions caused the victim significant immediate and long-term harm. [ 47 ] In Hood ABCA , our Court of Appeal unanimously upheld a sentence of three and a half years’ imprisonment as an appropriate punishment for an offender sentenced under section 153(1.1)(a). The offender was a 32 year old manager of a Chuck E. Cheese restaurant who engaged in a relationship with a 14 year old part-time employee.

The sexual relationship that developed was consensual and lasted for more than a year, during which time the offender and the victim frequently engaged in sexual intercourse. The relationship resulted in three pregnancies; the first ended in an abortion, the second in a miscarriage, and the third in a live birth. As a result of the relationship, the victim began abusing drugs, dropped out of school, and eventually attempted suicide. After being charged with sexual exploitation and released on bail, the offender violated his release conditions by contacting the victim.

The sentencing judge also refused to accept the offender’s evidence that he was a low risk to reoffend. [ 48 ] In K (RT) , our Court of Appeal unanimously upheld a punishment of three years’ imprisonment for an offender sentenced under section 153(1.1)(a). The offender engaged in various sexual acts with his stepdaughter over a two-year period, which began when the victim was 15 years old. The victim stated that the offender “touched, kissed, fondled and digitally penetrated her, conduct which led to his ejaculating.

She gave him ‘hand jobs’, but refused to engage in fellatio when he requested it.” The offender manipulated the victim into concealing his sexual acts, promoted the relationship by offering privileges in exchange for sexual gratification, and caused the victim long-term trauma in the process. Notably, although the sentencing judge acknowledged that the offence qualified as a major

sexual assault, the Court of Appeal accepted a starting point sentence of only three years (rather than four years). ii. A Fit and Proportionate Sentence is Between Six Months and One and a Half Years’ Imprisonment [ 49 ] EJB is entitled to be sentenced pursuant to section 153(1.1)(

a) as it appeared at the time of the offence. With this in mind, I remain cognizant that, subsequent to many of the authorities cited by him, Parliament clearly signalled that crimes against minors were to be treated more severely: see e.g. R v John , 2017 ONSC 810 at paras 24-27 .

I also remain cognizant, however, of the “inflationary floor” created by mandatory minimums, which our Court of Appeal has recognized as artificially increasing the sentencing ranges for offences similar to sexual exploitation: R v King , 2013 ABCA 3 at para 20 . [ 50 ] Further, I do not accept the Crown ’s argument that I am bound to sentence EJB to four years’ imprisonment or more based on the starting point sentence for a major sexual assault on a child by a person in a position of trust.

While I accept that his actions broadly satisfy the requirements for a major sexual assault, and thereby potentially attract the four year starting point sentence, there is nothing inevitable about such a result. Although the starting point from S (WB) may be analogized to sexual exploitation in certain circumstances, our Court of Appeal in Vigon at para 11 makes clear that there is still no “definitive” starting point for section 153(1.1) (a). [ 51 ] The Court of Appeal in Vigon did increase the offender’s sentence for sexual exploitation to four years’ imprisonment.

However, that sentence was based on a much more egregious set of circumstances than those currently before this Court. The Accused here is a first time offender who did not engage in any pre-planning or coercion and whose abuse of his position of trust, while real, was in my view nominal. Therefore, imposing a four year sentence would not be fit and proportionate in the circumstances. [ 52 ] The determination of a fit and proportionate sentence is a highly individualized process.

Even where a starting point applies, a court may still impose a sentence outside the established range so long as it accords with the principles and objectives of sentencing. The recent controversy caused by R v Gashikanyi , 2017 ABCA 194 , highlights the potential disproportionality created when imposing broadly applicable starting point sentences on first time offenders whose offences involve less egregious circumstances.

Unlike in Gashikanyi , however, this Court is not confronted with an established starting point for section 153(1.1)(a). [ 53 ] A court can be faced with varying degrees of blameworthiness when sentencing an offender under section 153(1.1)(a).

In determining the appropriate sentence, the available case law seems to focus on several important factors: the nature of the relationship between the offender and victim; the nature of the sexual acts; the duration of the sexual relationship; and the harm to the victim. [ 54 ] In this case, EJB’s sentence must reflect the fact that he abused his familial relationship as the Victim’s uncle by engaging in approximately four to six instances of sexual intercourse over three months.

Consideration must also be given, however, to the context of the sexual relationship, which was initiated by the Victim for no ulterior benefit and resulting in little known harm. The sentence must also account for the “inflationary floor” caused by section 153(1.1)(a)’s mandatory minimum. [ 55 ] Accordingly, I find that, absent the mandatory minimum, a fit and proportionate sentence for the Accused in the circumstances is somewhere between six months and one and a half years’ imprisonment. My conclusion is based on the unique set of aggravating and mitigating factors present in this case: (

a) The nature of the relationship, which increases EJB’s blameworthiness because he abused a familial relationship. The severity of the offence is somewhat reduced by his lack of actual control over the Victim and the Victim’s instigation of the sexual contact. However, our Court of Appeal in R v Pritchard , 2005 ABCA 240 at para 7 , is clear that consent when it is not relevant cannot be an independent mitigating factor; (

b) The degree and duration of sexual intimacy, which increases EJB’s blameworthiness because he engaged in both oral and vaginal sex with the Victim on multiple occasions. I recognize that the relationship lasted only a few months and was limited to a handful of encounters. However, he failed to voluntarily end the relationship and only ceased his misconduct when it was discovered by his wife; (

c) The implied harm to the victim and vast age disparity, which increases EJB’s blameworthiness. The Victim was a minor throughout the duration of the relationship and there was an age difference of approximately 19 years, which implies that EJB should have known better. Further, there is always foreseeable harm when an adult in a position of trust exploits a young person. However, the severity of the offence is also limited in this case due to a lack of known harm; (

d) EJB has no previous criminal record and is a contributing member of society; (

e) EJB is married with three children, gainfully employed, and is the sole means of support for his family. His family supported him throughout the trial, and that support will continue as he faces the consequences of his actions and works towards rehabilitation. Although I am cognizant that deterrence and denunciation remain the primary considerations in constructing any sentence; (

f) He willingly confessed the extent of his relationship with the Victim to police. He was also completely forthcoming and truthful about his misconduct at trial. Although this factor is of limited influence given that EJB failed to voluntarily terminate the relationship; and

(

g) The lengthy and unavoidable process delay, which has been caused by EJB’s original acquittal and subsequent conviction by theCourt of Appeal. As a result of the delay, the shame, expense, and stress of these proceedings have hung over his head for more thanfour years: see Hajar at para 169. [56] The exact aggravating and mitigating factors that will be considered in crafting a final sentence remain subject to furthersubmissions by the Accused and the Crown. B. Step Two: Effect of the Mandatory Minimum [57] Step two of the

section 12 analysis requires this Court to first determine whether it would be grossly disproportionate toimpose section 153(1.1)(a)’s mandatory minimum on EJB in the circumstances.

If the mandatory minimum is not grosslydisproportionate as applied to him, this Court must then determine whether it would be grossly disproportionate if applied to ahypothetical offender in reasonably foreseeable circumstances. [58] In Lloyd at para 24, McLachlin C.J.C. explains what it means for a mandatory minimum to be grossly disproportionate: This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment. To be “grosslydisproportionate” a sentence must be more than merely excessive.

It must be “so excessive as to outrage standards of decency” and“abhorrent or intolerable” to society: Smith, at p. 1072, citing R. v. Miller (1976), (SCC), [1977] 2 S.C.R. 680 (S.C.C.),at p. 688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 (S.C.C.), at para. 14.

The wider the range of conductand circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders forwhom the sentence would be grossly disproportionate. [59] In other words, section 153(1.1)(a)’s mandatory minimum will not be grossly disproportionate merely because it imposes agreater sentence than would otherwise be appropriate in the circumstances. A mandatory minimum can still impose a disproportionatesentence without violating

section 12. [60] For example, in R v Cristoferi-Paolucci, 2017 ONSC 4246, the Court found that the one year mandatory minimum in section153(1.1)(

a) was grossly disproportionate as applied to a hypothetical offender when a fit and proportionate sentence was between 60 and90 days’ imprisonment. However, the same mandatory minimum was not grossly disproportionate as applied to the accused when a fitand proportionate sentence in the circumstances was nine months’ imprisonment. [61] Similarly, in R v Laviolette, 2016 ONSC 7082, the Court found that the one year mandatory minimum in

section 151(

a) of theCriminal Code was grossly disproportionate as applied to a hypothetical offender when a fit and proportionate sentence was between 60and 90 days’ imprisonment. However, the same mandatory minimum was not grossly disproportionate as applied to the accused when afit and proportionate sentence in the circumstances was nine months’ imprisonment. [62] Further, in R v Morrison, 2017 ONCA 582, the Ontario Court of Appeal held that the one year mandatory minimum in section172.1(2)(

a) of the Criminal Code was grossly disproportionate as applied to the accused when a fit and proportionate sentence in thecircumstances was four months’ imprisonment. Had the appropriate sentence been several months greater, the Court in Morrison maynot have found the mandatory minimum to be grossly disproportionate. I note that the Crown’s application for leave to appeal to theSupreme Court is still outstanding in this case. i.

Submissions of the Parties [63] To reiterate, EJB argues that section 153(1.1)(a)’s one year mandatory minimum is grossly disproportionate because a fit andproportionate sentence in the circumstances is a conditional sentence order or, at most, 90 days’ imprisonment.

Meanwhile, the Crownargues that the one year mandatory minimum is not grossly disproportionate because a fit and proportionate sentence in thecircumstances is four years’ imprisonment or more. [64] Alternatively, EJB argues that section 153(1.1)(a)’s mandatory minimum is grossly disproportionate as applied to ahypothetical offender in reasonably foreseeable circumstances. EJB’s reasonable hypothetical involves a first-time offender who engagesin a single sexual encounter with his niece by marriage.

That encounter is instigated by the victim, but is terminated by the offender afteronly touching the victim’s breast over her clothing. [65] To support his claim that section 153(1.1)(a)’s mandatory minimum is grossly disproportionate, he points to several recentdecisions where courts have found the mandatory minimums in either section 153(1.1)(

a) or other similar sexual offences to beunconstitutional: R v Hood, 2016 NSPC 78 [Hood NSPC] (section 153(1.1)(a)); Ford (section 151(1)(a)); R v Hussein, 2017 ONSC4202 (section 151(1)(a)); R v T (BJ), 2016 ONSC 6616 (section 151(1)(a)); R v P (SJ), 2016 NSPC 50 (section 151(1)(a)); R vDeyoung, 2016 NSPC 67 (section 271(a)); and R v R (ERD), 2016 BCSC 684 (section 271(a)). [66] The Crown rejects EJB’s reasonable hypothetical as far-fetched or remotely imaginable because it is based on the mostsympathetic case imaginable.

The Crown argues that EJB’s hypothetical scenario inappropriately attributes personal traits and details tothe victim, such as instigating the sexual contact, and relies on a degree of contact so marginal that it is not foreseeable that it wouldresult in a criminal charge. [67] The Crown also rejects EJB’s argument that the gross disproportionality of section 153(1.1)(a)’s mandatory minimum can begleaned from existing case law. The Crown asserts that most of the authorities cited by him are factually distinguishable and/or involveprovisions other than section 153(1.1)(a).

In regards to Hood NSPC, wherein the Court declared section 153(1.1)(

a) to beunconstitutional, the Crown argues that the same conclusion is impossible in Alberta because similar facts would attract the four yearstarting point sentence for a major sexual assault. Further, the Crown also cites R v Q (EM), 2015 BCSC 201, as an example of where a

superior court found the one year mandatory minimum in

section 151 to be constitutional. ii. The Mandatory Minimum is not Grossly Disproportionate as Applied to the Accused in the Circumstances [ 68 ] In Goltz at paras 27-29 , citing Smith at 1073, Gonthier J. (for the majority) clarifies the relevant factors this Court must consider in assessing whether section 153(1.1)(a)’s mandatory minimum is grossly disproportionate: (

a) Gravity of the offence; (

b) Personal characteristics of the offender; (

c) Particular circumstances of the case; (

d) Punishment's actual effect on the offender; (

e) Whether the punishment achieves a valid penal purpose; (

f) Whether it is founded on recognized sentencing principles; (

g) Whether alternative punishments exist; and (

h) Whether the punishment is disproportionate compared to similar crimes in the same jurisdiction. [ 69 ] Gonthier J. also notes that the arbitrariness of the sentence may be considered as a minor factor in the analysis. Although even an arbitrary sentence does not necessarily violate

section 12. [ 70 ] In this case, there is no question that the sexual exploitation of a young person is a grave offence that necessitates a more severe punishment. As a result, the mandatory minimum also achieves a valid penological purpose in seeking to punish such reprehensible conduct. This conclusion is codified by

section 718.01 of the Criminal Code , which dictates that denunciation and deterrence must be the primary considerations in sentencing the Accused. Although I note that the Supreme Court in Proulx at para 41 makes clear that these considerations can also be satisfied through a conditional sentence order, which “may be as onerous as, or perhaps even more onerous than, a jail term...” [ 71 ] The circumstances of this case and characteristics of the offender dictate that some kind of term of imprisonment is required.

While there does not appear to be any pre-planning or grooming on the part of EJB, he was still in a position of trust and committed what can be characterized as a major sexual assault. These circumstances, however, are tempered by the characterization of EJB as a somewhat sympathetic figure. He is a married father of three children, gainfully employed, the sole means of support for his family, and a contributing member of society.

In other words, EJB is clearly not some kind of predator that must be locked away forever for the safety of the community. [ 72 ] Based on the facts before this Court, I find that a one year mandatory minimum sentence would not be grossly disproportionate as applied to EJB. A fit and proportionate sentence in the circumstances is between six months and one and a half years’ imprisonment. Therefore, even assuming he is entitled to the lowest possible sentence in that range, one year imprisonment is not grossly disproportionate. Such a sentence may be disproportionate , but that is not the threshold required by

section 12. As McLachlin C.J.C. highlights in Lloyd at para 24 , it is only in exceptional circumstances that a mandatory minimum will be grossly disproportionate . EJB’s case simply does not represent such an exceptional set of circumstances. iii. The Mandatory Minimum is Grossly Disproportionate as Applied to a Hypothetical Offender in Reasonably Foreseeable Circumstances [ 73 ] I have found that section 153(1.1)(a)’s mandatory minimum is not grossly disproportionate as applied to the Accused. Therefore, I must now determine whether the mandatory minimum would be grossly disproportionate as applied to a hypothetical offender in reasonably foreseeable circumstances. This part of the

section 12 analysis is essentially a matter of statutory

interpretation. [ 74 ] In Nur at para 61, McLachlin C.J.C. summarizes the questions that the reasonable hypothetical analysis is intended to answer: ... [T]he court is simply asking: What is the reach of the law? What kind of conduct may the law reasonably be expected to catch? What is the law's reasonably foreseeable impact? Courts have always asked these questions in construing the scope of offences and in determining their constitutionality. [ 75 ] What constitutes an appropriate reasonable hypothetical will vary depending on the offence and the circumstances.

In R v Morrisey , 2000 SCC 39 at para 33 , Gonthier J. (for the majority) explains how a reasonable hypothetical should be constructed: Again, it is to be remembered that the courts are to consider only those hypotheticals that could reasonably arise. Homicide is far from a common occurrence in Canada. Criminal negligence causing death with a firearm is even less common. It is thus appropriate to develop hypotheticals from the case law by distilling their common elements. Goltz requires that hypotheticals be "common" rather than "extreme" or " far-fetched".

It is sufficient when dealing with a rare and uncommon crime that the hypotheticals be common examples of the crime rather than examples of common occurrences in day-to-day life. However, in constructing hypotheticals, courts can be guided by real life cases, but to the extent that these cases may not be exhaustively reported, they are not bound to limit the fashioning of hypotheticals to the cases that are made available to them.

In fashioning hypotheticals for the purpose of a s. 12 analysis, reported cases can be used with caution as a starting point, and additional circumstances can be added to the scenario to construct an appropriate model against which to test the severity of the punishment.

[76] In Nur at para 62, McLachlin C.J.C. further clarifies the flexibility in constructing an appropriate reasonable hypothetical: The inquiry into cases that the mandatory minimum provision may reasonably be expected to capture must be grounded in judicialexperience and common sense. The judge may wish to start with cases that have actually arisen ... and make reasonable inferences fromthose cases to deduce what other cases are reasonably foreseeable. Fanciful or remote situations must be excluded: Goltz, at p. 506. Torepeat, the exercise must be grounded in experience and common sense.

Laws should not be set aside on the basis of mere speculation. [77] In other words, any reasonable hypothetical considered by this Court must reflect a set of facts that may commonly arisepursuant to

section 153. These facts may be based on reported cases, but also further altered to test the realistic extent of section 153(1.1)(a)’s applicability. [78] Based on the Supreme Court’s requirements, I cannot accept EJB’s hypothetical as designed. However, with somemodification, it is still reasonably foreseeable that section 153(1.1)(a)’s mandatory minimum could result in a grossly disproportionatesentence.

Take for example the two hypothetical scenarios considered by McWatt J. in Cristoferi-Paolucci at paras 65-72. [79] In the first scenario, the offender, a 20 year old family friend and sometimes babysitter, touches the breast of the 17 year oldvictim over her clothing. This scenario, which is based on the facts in R v L (C), 2013 ONSC 277, could foreseeably subject a first timeoffender to a one year mandatory minimum sentence. In the second scenario, the offender, a 60 year old teacher, allows the victim, a 17year old student, to momentarily touch her breasts over her clothing.

This scenario, which is based on the facts in R v Careen, 2012BCSC 918, could also foreseeably subject an otherwise upstanding and respected offender to a one year mandatory minimum sentence.McWatt J. found that both hypothetical scenarios could result in grossly disproportionate sentences because either 60 or 90 days’imprisonment was a fit and proportionate punishment in the circumstances. [80] I agree that the broad applicability of section 153(1.1)(

a) could result in a grossly disproportionate mandatory minimum ineither of the scenarios considered in Cristoferi-Paolucci. Both scenarios involve a first time offender who engages in brief sexual contactwith a young person while in a lesser position of trust. A sentence of no more than 90 days’ imprisonment would be fit and proportionatein those circumstances. Therefore, I find that section 153(1.1)(a)’s mandatory minimum is grossly disproportionate in reasonablyforeseeable circumstances. 2) Can the Mandatory Minimum in Section 153(1.1)(

a) beJustified Under

Section 1 of the Charter? [81] I have found that section 153(1.1)(a)’s mandatory minimum is grossly disproportionate as applied to a hypothetical offender inreasonably foreseeable circumstances. Therefore, it violates

section 12 of the Charter and must be struck down unless justified undersection 1 of the Charter. [82] In Nur at para 111, McLachlin C.J.C. outlines the analysis for determining whether a mandatory minimum can be saved bysection 1: In order to justify the infringement of the [offender’s] s. 12 rights under s. 1 of the Charter, the [Crown] must show that the law has apressing and substantial objective and that the means chosen are proportional to that objective.

A law is proportionate if (1) the meansadopted are rationally connected to the objective; (2) it is minimally impairing of the right in question; and (3) there is proportionalitybetween the deleterious and salutary effects of the law; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103. It will be difficult toshow that a mandatory minimum sentence that has been found to be grossly disproportionate under s. 12 is proportionate as between thedeleterious and salutary effects of the law under s. 1. [83] The Crown concedes that section 153(1.1)(

a) cannot be justified under

section 1 of the Charter. [84] EJB argues that, while the rational connection requirement is met in this instance, section 153(1.1)(

a) is neither minimallyimpairing nor proportionate. A. There is a Rational Connection [85] The first part of the

section 1 analysis requires the Crown to prove there is a rational connection between the mandatoryminimum and the objective of protecting young persons from exploitation by adults in positions of trust or authority. I agree with EJB’sconclusion that there is a rational connection between the mandatory minimum and combatting the exploitation of children. It will be arare occurrence where Parliament creates a mandatory minimum that is not rationally connected to the misconduct it wishes to denounceand deter. B. There is no Minimal Impairment [86] The second part of the

section 1 analysis requires the Crown to prove there are no less harmful means available to achieveParliament’s goal of protecting young persons. I agree with EJB that there is no minimal impairment in this instance. [87] Section 153(1.1)(

a) is applicable to a wide range of offenders with varying levels of moral blameworthiness. A mandatoryminimum sentence of one year imprisonment will not be fit and proportionate for all those offenders who may be caught under section153(1.1)(a). Some offenders may deserve less severe custodial sentences, or even non-custodial sentences such as CSOs and suspendedsentences. Therefore, minimal impairment is precluded by section 153(1.1)(a)’s broad applicability and lack of judicial discretion inexceptional circumstances.

C. There is no Proportionality [ 88 ] The third part of the

section 1 analysis requires the Crown to prove that section 153(1.1)(a)’s impact on offenders is proportionate to the greater public good flowing from the inclusion of its mandatory minimum. I agree with EJB that there is no proportionality in this instance. [ 89 ] It is exceedingly difficult to prove that a grossly disproportionate mandatory minimum sentence is proportionate under

section 1. In R v Nur , 2013 ONCA 677 at para 181 , aff’d 2015 SCC 15 , Doherty J.A. (for the majority) concludes that “[i]f an argument can be made that could justify sheltering a sentence that amounted to cruel and unusual punishment under s. 1, I have not heard it.” Similarly, this Court has certainly not heard such an argument. The Crown has not demonstrated that the public good created by section 153(1.1)(

a) outweighs the cruel and unusual punishment it is capable of imposing on certain offenders. VI. Conclusion [ 90 ] I find that section 153(1.1) (

a) of the Criminal Code as it appeared in March 2013 violates

section 12 of the Charter and cannot be justified under

section 1 of the Charter . Accordingly, I declare its one year mandatory minimum sentence to be of no force or effect. [ 91 ] A sentence of one year imprisonment is not grossly disproportionate as applied to EJB in the circumstances, as a fit and proportionate sentence is between six months and one and a half years’ imprisonment. However, the mandatory minimum is grossly disproportionate as applied to a hypothetical babysitter or teacher whose only sexual contact with a young person is limited to a single instance of inappropriate touching.

In such circumstances, a fit and proportionate sentence would be between 60 and 90 days’ imprisonment and, therefore, a one year sentence would constitute cruel and unusual punishment. Heard on the 1 st day of November, 2017. Dated at the City of Calgary, Alberta this 28 th day of November, 2017. K.M. Horner J.C.Q.B.A. Appearances: J. Sawa for the Crown Balfour Der, Q.C. Der Barristers for the Accused