R. v. MacLean, 2021 NLCA 24

Her Majesty the Queen (appellant/respondent by cross-appeal) v. Russell Edward MacLean (respondent/appellant by cross-appeal) (18/100 and 18/101) Indexed As: R. v. MacLean 2021 NLCA 24 6 C.A.N.L.R. 537 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., O’Brien and Goodridge JJ.A. April 29, 2021 Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant shall not be published in any documents, broadcast or transmitted in any way.

Summary: Russell MacLean, 21 years old, was convicted, following a trial by jury, of sexual assault by having intercourse with a 12-year-old girl contrary to

section 271 (

a) of the Criminal Code . The jury did not accept Mr. MacLean’s defence that he mistakenly believed that the complainant was at least 16 years of age. The trial judge imposed a 90-day sentence to be served on an intermittent basis, followed by two years probation. The Crown appealed against the sentence, arguing that the sentence was so light that it was demonstrably unfit and that the trial judge erred in declaring the one-year mandatory minimum sentence under

section 271 (

a) to be unconstitutional. Mr. MacLean cross-appealed against the conviction, arguing that he was denied a fair trial due to misstatements of the law made by the Crown to the jury in closing submissions regarding the burden of proof for the mistake of age defence. Held: Leave to appeal against sentence granted; appeal regarding mandatory minimum sentence dismissed; appeal against sentence allowed; cross-appeal against conviction dismissed. Goodridge J.A. (Fry C.J.N.L. and O’Brien J.A. concurring): The jury instructions were sufficient to remedy any prejudice arising from the Crown’s closing submissions.

The judge properly explained the legal principles to be applied to the mistake of age defence, the burden of proof for the defence, and how the evidence related to the defence. There was no prejudice to trial fairness. The appeal against the conviction was dismissed (paragraphs 20-40). The judge correctly stated the three-step analytical framework for assessing the constitutionality of a mandatory minimum sentence (paragraphs 41-45). There was no error in the judge’s conclusion that the mandatory minimum sentence under

section 271 (

a) failed the “reasonably foreseeable applications” test. The judge did not err in finding that the mandatory minimum was a

section 12 Charter infringement that was not justified by

section 1 of the Charter (paragraphs 46-52). There was an arguable basis for the Crown’s submission that the 90-day sentence was demonstrably unfit. Accordingly, leave to appeal was granted (paragraph 54). The sentence imposed by the judge was demonstrably unfit. The judge erred in failing to give primary consideration to the sentencing objectives of denunciation and deterrence where

section 718.01 is engaged, and in overemphasizing rehabilitation. The judge erred by describing the complainant as a “willing participant”, which is irrelevant in the case of a 12 year old girl who is below the age of consent (paragraphs 55-61). The judge erred in placing too much emphasis on what he perceived as a lower level of moral blameworthiness by Mr. MacLean

(paragraphs 62-66). The jurisprudence indicated that a term of imprisonment of three years is at the low end of the range in sentencing adults who commitsexual crimes against children that involve intercourse. Considering the facts and circumstances, an appropriate sentence for Mr.MacLean was three years imprisonment. This duration satisfied the sentencing objectives of denunciation and deterrence, and alsosatisfied the parity principle (paragraphs 67-75). Considering the circumstances, Mr. MacLean’s re-incarceration was warranted.

The matter did not fall within the limited or exceptionalcircumstances that would have justified an order for a stay of the varied sentence. The significant disparity between the sentence imposedby the judge and the range of sentence for this offence, the seriousness of the offence, and the primary considerations of denunciationand deterrence favoured Mr. MacLean’s re-incarceration (paragraphs 76-82). Cases cited: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301 R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745 R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 R. v. Friesen, 2020 SCC 9 R. v.

Blanchard, 2011 NLCA 33, 308 Nfld. & P.E.I.R. 91 R. v. McIvor, 2018 MBCA 29 R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021 R. v. S. (W.D.), (SCC), [1994] 3 S.C.R. 521 (S.C.C.) R. v. Rose, (SCC), [1998] 3 S.C.R. 262 (S.C.C.) R. v. Duran, 2013 ONCA 343 R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130 R. v. Lavallee, Rackel & Heintz, 2002 SCC 61, [2002] 3 S.C.R. 209 R. v. Hood, 2018 NSCA 18 R. c. Caron Barrette, 2018 QCCA 516 R. v. JED, 2018 MBCA 123 R. v. Scofield, 2019 BCCA 3 R. v. Ford, 2019 ABCA 87 R. v. B.J.T., 2019 ONCA 694 R. v. Lafferty, 2020 NWTSC 4 R. v.

Y.H., 2019 YKSC 28 R. v. Hussein, 2017 ONSC 4202 R. v. Gordon, 2018 ONSC 6217 R. v. E.R.D.R., 2016 BCSC 684 R. v. E.R.D.R., 2016 BCSC 1759 R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599 R. v. Noseworthy, 2021 NLCA 2

R. v. Payne , 2012 NLCA 72 , 330 Nfld. & P.E.I.R. 181 R. v. Branton , 2013 NLCA 61 , 341 Nfld. & P.E.I.R. 329 R. v. R.B. , 2019 NLCA 22 R. v. A.B. , 2015 NLCA 19 , 365 Nfld. & P.E.I.R. 160 R. v. Morrison , 2019 SCC 15 , [2019] 2 S.C.R. 3 R. v. Vokey , 2000 NFCA 14, 186 Nfld. & P.E.I.R. 1 R. v. Barrett , 2012 NLCA 46 , 324 Nfld. & P.E.I.R. 246 R. v. Kane , 2012 NLCA 53 , 325 Nfld. & P.E.I.R. 78 R. v. English , 2012 NLCA 64 , 328 Nfld. & P.E.I.R. 14 R. v. Kleykens , 2020 NSCA 49 R. v.

Taylor , 2013 NLCA 42 , 337 Nfld. & P.E.I.R. 24 Statutes considered: Criminal Code , sections 150.1(4) , 151 (a), 271 (a), 487.051 , 490.012 , 676(1) (d), 687(1) , 718.01 Sex Offender Information Registration Act , S.C. 2004, c. 10 ; Canadian Charter of Rights and Freedoms , sections 12 and 1 Judicature Act , RSNL 1990, c. J-4,

section 57 Constitution Act, 1982 , section 52(1) Counsel: Dana Sullivan, for the appellant/respondent by cross-appeal; Rosellen Sullivan, for the respondent/appellant by cross-appeal. The appeal was heard on December 11, 2020 before Fry C.J.N.L., O’Brien and Goodridge JJ.A. The following judgment was filed on April 29, 2021 by Goodridge J.A. for the Court. ______________________________________________________________ Goodridge J.A.: [ 1 ] On September 21, 2017, following a trial by jury, Russell MacLean was found guilty under s. 271 (

a) of the Criminal Code for sexually assaulting, by vaginal intercourse, a 12-year-old girl. At the time of the incident, June 1, 2015, Mr. MacLean was 21-years-old. [ 2 ] On October 16, 2018, the trial judge imposed a 90-day sentence to be served on an intermittent basis, followed by two years probation. There were also various ancillary orders such as an order requiring Mr. MacLean to register under the Sex Offender Information Registration Act , S.C. 2004, c. 10 . [ 3 ] The Crown seeks leave to appeal and, if granted, appeals the sentence. Mr. MacLean appeals the conviction. [ 4 ] Mr.

MacLean admitted that he had sexual intercourse with the 12-year-old complainant. He defended the charge on the basis that he mistakenly believed the complainant was at least 16 years of age (old enough to give a lawful consent) and that he took all reasonable steps to ascertain her age. The jury rejected that defence. GROUNDS OF APPEAL [ 5 ] The grounds of appeal on conviction allege that Mr. MacLean was denied a fair trial. Mr.

MacLean says that there were misstatements of the law made by the Crown in the closing submissions to the jury regarding the burden of proof for the mistake of age defence, that the trial judge failed to correct those misstatements, and that this failure resulted in an unfair trial. Mr. MacLean asks for an

order setting aside his conviction and allowing a new trial. [ 6 ] The sentence appeal alleges that the trial judge erred by declaring the one-year minimum sentence unconstitutional, failing to give primary consideration to denunciation and deterrence when crafting a fit sentence, finding that Mr. MacLean’s actions involved a lower level of moral blameworthiness, and imposing a sentence so light that it was demonstrably unfit.

The Crown asks that the conviction appeal be dismissed, that the sentence appeal be allowed, and that the 90-day sentence be replaced with a sentence of three years. [ 7 ] For the reasons that follow, I would dismiss the conviction appeal, grant leave for the sentence appeal, allow the sentence appeal, and vary the sentence to three years less the 90 days already served.

ISSUES [ 8 ] The issues in this appeal can be resolved by answering the following questions: • Were the trial judge’s final instructions to the jury sufficient to remedy any prejudice to trial fairness arising from statements made by the Crown during closing submissions to the jury? • Did the trial judge err in finding that the mandatory minimum sentence under s. 271 (a) – one-year sentence where the complainant is under 16 years – was a s. 12 Charter infringement that was not justified under s.1 of the Charter ? • Did the trial judge err by imposing a demonstrably unfit sentence?

STANDARD OF REVIEW [ 9 ] For the conviction appeal, the issues raised involve the adequacy of the trial judge’s instructions to the jury. In assessing whether jury instructions are adequate, appellate courts apply a functional approach, asking whether the instructions as a whole enable the jury to decide the case according to the law and the evidence, see R. v. Calnen , 2019 SCC 6 , [2019] 1 S.C.R. 301 , at para. 8 . The expectation is that the jury is properly, not perfectly, instructed.

The jury is properly instructed when the instructions enable the jury to understand the live issues, the relevant law and the relevant evidence relating to those live issues. If the instructions adequately inform the jury what it must consider, then appeal courts cannot intervene simply because the instructions could have been better. However, appeal courts will intervene if the instructions are not in substantial compliance with the existing law, or depart from established principles, see R. v.

Avetysan , 2000 SCC 56 , [2000] 2 S.C.R. 745 , at paras. 1-2 . [ 10 ] For a sentence appeal, the standard of review is a highly deferential one. Except where a sentencing judge makes an error of law or principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit, see R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089 , at paras. 11 and 44 , and R. v.

Friesen , 2020 SCC 9 , at para. 3 . [ 11 ] For a review of the trial judge’s finding of a Charter violation (one-year mandatory minimum sentence amounted to cruel and unusual punishment and violated s. 12 ) this Court examines whether the correct legal principles were applied. For that issue a standard of correctness applies, see R. v. Blanchard , 2011 NLCA 33 , 308 Nfld. & P.E.I.R. 91 , at paras. 32-33 , and R. v. McIvor , 2018 MBCA 29 , at para. 15 . OVERVIEW [ 12 ] Only two witnesses testified at the trial, the complainant and Mr. MacLean. [ 13 ] Both witnesses acknowledged that in early 2015, Mr.

MacLean accepted a Snapchat friend request from the complainant. The complainant used a ‘vanity name’ instead of her actual name. The two continued occasional message exchanges on Snapchat during the winter and spring of 2015, but had no in-person contact before the sexual encounter of June 1, 2015. The messages were not saved and were not available at trial. [ 14 ] The complainant testified that she had told Mr. MacLean her age – “I had told him I was 12 and he knew that my birthday was a week after the night we were together [for sex]” (Transcript, September 19, 2017, at 10). Mr.

MacLean testified that the complainant had not told him her age, that he did not ask her name or age, and that he did nothing to identify who she was prior to or during their sexual encounter – “At no point in any conversation that I ever had on Snapchat would you exchange your personal information, name, or age, and significantly, not with [the complainant]” (Transcript, September 20, 2017, at 33). [ 15 ] At around 11:30 p.m. on May 31, 2015, based on Mr. MacLean’s testimony, the complainant and Mr.

MacLean agreed to meet for the purpose of sexual intercourse: I was prompted … that we should meet and, and, you know, instead of sexting have, have intercourse ... She said that she needed a bit of time to shower and get cleaned up and she would message me when she was, when she was ready. (Transcript, September 20, 2017, at 36) [ 16 ] The complainant also testified about the night she agreed to meet with Mr. Maclean: Q. How did you end up with him picking you up? How did that happen? A. … he asked me that night if I had wanted to hang out and I told him sure, but I would have to wait ‘til my mom fall asleep.

And he

said okay well let me know when she do. Q. And you said sure, but you had to wait for mom to fall asleep. A. Yes. Q. And why did you have to wait for your mother to fall asleep? A. Because it was 2:30 or 3:30 in the morning and I had school the next day. [17] Mr. MacLean heard back from the complainant a few hours after they agreed to meet, which was around 3:00 a.m. on June 1,2015. He picked her up at that time at an agreed meeting place; she was wearing pajama pants and a hoodie when she got into hisvehicle. Mr.

MacLean immediately drove to his cousin’s home, where he and the complainant engaged in sexual intercourse. MISTAKE OF AGE DEFENCE [18] For the offence of sexual assault, consent is not a defence if the complainant is under 16 years of age. However, s. 150.1(4)provides a defence if the accused believed that the complainant was 16 years of age or more and took all reasonable steps to ascertain theage. That

section states: 150.1(4) It is not a defence to a charge under

section … 271 … that the accused believed that the complainant was 16 years of age ormore at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of thecomplainant. [19] The trial judge accepted that there was an air of reality to this defence. In the circumstances, the Crown had the burden to prove,beyond a reasonable doubt, either that Mr. MacLean (1) did not honestly believe the complainant was at least 16 (the subjective element);or (2) did not take all reasonable steps to ascertain the complainant's age (the objective element), see R. v.

George, 2017 SCC 38, [2017]1 S.C.R. 1021, at para. 8. ANALYSIS Were the trial judge’s final instructions to the jury sufficient to remedy any prejudice to trial fairness arising from statementsmade by the Crown during closing submissions to the jury? [20] Mr. MacLean says that the Crown misstated the law during closing submissions, and caused confusion in the minds of jurors, byimplying that Mr.

MacLean had the burden to prove his defence, and by inviting the jurors to engage in a credibility contest. [21] It is not contentious that the Crown had the burden of proof, beyond a reasonable doubt, to demonstrate that Mr. MacLean did nothonestly believe that the complainant was at least 16 years of age, or that he did not take all reasonable steps to ascertain the age, seeGeorge, at para. 8.

It is also not contentious that proof beyond a reasonable doubt requires weighing all of the evidence, and that theburden is not satisfied simply by engaging in a credibility contest – choosing whether to believe the complainant or Mr. MacLean, see R.v.

S. (W.D.), (SCC), [1994] 3 S.C.R. 521, at 535. [22] The question is whether the Crown said something in closing submissions that misstated these two non-contentious principles,and if that occurred, whether the trial judge’s instructions were sufficient to remedy any potential for misunderstanding. [23] Sample extracts from the Crown’s closing submissions, which Mr.

MacLean says misstated the law on these two non-contentiousprinciples, and caused confusion in the minds of jurors, include: … [W]e are talking about whether he had an honest belief that she was 16 or older and then, as well as that, whether he took reasonablesteps, all reasonable steps to find out if she was 16 or older. … What is going to be left to you as the jury is whether he honestly believed or that she was 16 or older, Russell MacLean had that honestbelief, honest belief and even if he did, whether he took all reasonable steps to find out that she was actually consenting legal age. … I am not going to go through the law, except to say, what I think is important for you to remember that this was Russell MacLean’sresponsibility [to figure out that she was not capable of consenting based on her age]. … [H]is responsibility was to ensure the age of the person that he was about to have sex with, or if he wasn’t going to actually figure out theage, he had to take all reasonable steps to determine her age …

… I am going to give you my reasons why I think [the complainant’s] is the evidence that you should accept. … I would suggest to you that your common sense will tell you that what [the complainant] is telling you is truthful.

That these points thatRussell MacLean is making that they are not truthful, and they are self-serving. … He made assumptions and as the adult in this relationship, he had the responsibility to take all reasonable steps, which at the bare least,includes something. (Transcript, September 21, 2017, at 17-36) [24] For the reasons that follow, I am satisfied that the trial judge’s instructions were sufficient to remedy any potential formisunderstanding. There was adequate clarity on the two non-contentious principles referenced above.

There was no prejudice to trialfairness. [25] There were parts of the Crown’s closing submissions (reproduced at paragraph 23 above) that in isolation could have left the jurywith a misunderstanding that Mr. MacLean had the burden to prove his defence. However, these parts in isolation do not establish thefull picture; context is important.

The context includes all of the closing submissions from both Crown and defence counsel, as well asthe trial judge’s closing instructions to the jury. [26] Defence counsel’s closing submissions to the jury, which preceded the Crown’s closing submissions, correctly stated that theburden of proof (beyond a reasonable doubt) for the mistake of age defence was on the Crown: To convict, in this case, the Crown must prove beyond a reasonable doubt that either Russell MacLean did not honestly believe thecomplainant was at least 16 years of age, or the accused person did not take all reasonable steps, in the circumstances, to ascertain thecomplainant’s age.

So, first, the Crown must prove, beyond a reasonable doubt, that Russell MacLean …did not honestly believe that[the complainant] was at least 16 years of age, or the Crown must prove, beyond a reasonable doubt, that Russell MacLean did not takeall reasonable steps to ascertain [the complainant’s] age. It is our position that the Crown did not meet its burden in this case. (Transcript, September 21, 2017, at 8) [27] Crown counsel’s closing submission to the jury invited jurors to accept that the evidence demonstrated, beyond a reasonabledoubt, that Mr.

MacLean did not honestly believe that the complainant was at least 16 years of age, or that he did not take all reasonablesteps to ascertain the age.

The portion of that submission, reproduced below, demonstrates that the Crown advised jurors that they had tobe satisfied that the mistake of age defence was proven, and that it had to be proven to the standard ‘beyond a reasonable doubt’: I am asking you to decide, based on the evidence beyond a reasonable doubt that number one, Russell MacLean did not have an honestbelief that she was 16 or older … But even if you don’t accept that, even if, based on the evidence that you’ve heard, you do not, youthink that, okay, Russell MacLean did actually believe she was over 16 because of these things that had happened between them, even ifyou don’t believe that, then I am asking you to accept, beyond a reasonable doubt, that he did not take all reasonable steps to ascertainher age. (Transcript, September 21, 2017, at 36) [28] The trial judge’s instructions to the jury correctly stated that the burden of proof (beyond a reasonable doubt) for the mistake ofage defence was on the Crown: The Crown bears the burden of proving beyond a reasonable doubt that he did not have an honest belief that she was at least 16 years ofage or that he did not take all reasonable steps in the circumstances of this case to ascertain her age. (Transcript, September 21, 2017, at 80-81) [29] In his jury instructions, the trial judge also addressed, and clarified, the alleged misstatements of law made by the Crown, thatmay have caused confusion in the minds of jurors.

During a pre-charge conference, both counsel had approved the wording used in theseclarifying jury instructions. The trial judge identified for the jury the possible misstatements by paraphrasing what the Crown had said,and then clarifying that there was no burden of proof on Mr. MacLean: In her closing submissions, Crown counsel made a number of statements, which may have led you to believe there was a responsibility,obligation or onus on Mr. MacLean to find out [the complainant’s] age.

Crown counsel made a statement to the effect that it is theresponsibility of the adult to find out the age of the person they are having sex with and later a statement to the effect that it was Mr.Maclean’s responsibility to ensure the age of [the complainant]. To the extent this might have suggested to you that there is anyresponsibility, obligation or onus on Mr.

MacLean to prove he took steps to ascertain the age of [the complainant], then I wish to clarifythat no such responsibility, obligation or onus exists under our law. [30] It is a long-established rule that the trial judge instructs the jury on law, and that the trial judge can rectify counsels’ errors. Therule that the trial judge instructs on the law was repeated to the jury several times, including by the trial judge during his opening andfinal instructions, and by both counsel. In R. v.

Rose, (SCC), [1998] 3 S.C.R. 262, the majority reasons discussed theability of the trial judge to rectify errors in the jury submissions of counsel. At paragraph 125 of Rose the Court indicated that a specificcorrecting reference will suffice in most cases: “[I]f a trial judge is of the opinion that an irregularity in counsel's address has jeopardized

the fairness of the trial, then, in most situations, it may be rectified by a specific correcting reference to it in the charge to the jury”. [ 31 ] Mr. MacLean had relied upon R. v. Duran , 2013 ONCA 343 , in arguing that the instructions were not adequate. Duran is not a comparable case, and does not support Mr. MacLean’s arguments. In Duran , it was the cumulative effect of multiple errors that necessitated a new trial. One of those errors related to the judge’s instruction on the mistake of age defence.

The error was significant because the trial judge was the one making the error (as opposed to clarifying an alleged misstatement by counsel) and because the judge, when addressing the mistake of age defence, did little more than read out the words of s. 150.1(4) and tell the jury that the test was objective. That was clearly inadequate. [ 32 ] In the current matter, the trial judge went into the details on the mistake of age defence, and in a manner consistent with what was suggested by the Ontario Court of Appeal in Duran , at paras. 52-53 .

For example, the trial judge went into details about what constitutes all reasonable steps to ascertain the age, including advising the jury that in some circumstances, there is no need to inquire about age: The law recognizes that in some cases the circumstances are such that there is no need to take any steps or make any inquiries in order to satisfy the all reasonable steps requirement in

section 150.1(4) of the Criminal Code . In some circumstances, there is no need for an accused to ask the complainant her age or to ask other questions which would disclose her age. It depends on the specific circumstances of each case and whether a reasonable person in each specific set of circumstances would have taken other steps to ascertain the age of the complainant. The burden of proof at all times remains on the Crown. It must prove, beyond a reasonable doubt that Russell MacLean did not take all reasonable steps in the circumstances to ascertain the age of [the complainant].

What constitutes reasonable steps must be assessed and navigated on the specific circumstances of each case. That means that you must conduct your assessment and evaluation of this issue on the basis of the specific factual circumstances that existed here. That includes, in particular, the fact that they met and had all their communication leading up to the events of June 1, 2015 online through the social media app Snapchat.

It also includes the nature of their communication, including how it developed over time, and how they ended up together to have sex on June 1, 2015. (Transcript, September 21, 2017, at 84) [ 33 ] The trial judge also reviewed with the jury the evidence supporting Mr. MacLean's mistake of age defence, as well as the contradictory evidence from the complainant. In particular, the trial judge referred to the following highlights from Mr. MacLean’s testimony (his version of events) that supported the defence: • the complainant did not tell Mr. MacLean her name or age; • Mr.

MacLean thought that most of his ‘friends’ on Snapchat were 18 to 25 years of age; • the content of messages received from the complainant signaled a female 18 to 25 years of age; • the explicit images received from the complainant appeared to be of a woman in the age range of other women Mr.

MacLean was sexting with, namely 18 to 25; • the complainant posted on Snapchat an image of a case of beer and a caption, “Going to get drunk tonight”; • the complainant posted on Snapchat an image of a person holding a marihuana joint, and a caption along the lines, [Getting high]; • the complainant presented with a confident demeanor when Mr. MacLean picked her up for the sexual encounter, at 3 a.m. on June 1; and • the complainant mentioned the name of a mutual acquaintance who Mr.

MacLean knew to be around 20 years of age. [ 34 ] The trial judge referred to the following contradictory evidence from the complainant’s testimony (her version of events): • Mr. MacLean knew the complainant’s age because the complainant had told him that she was 12; and • the complainant had not sent pictures of a case of beer or a marihuana joint and never sent messages suggesting that she was going out to parties. [ 35 ] The trial judge reminded the jury that the complainant admitted that she had sent Mr.

MacLean sexually explicit images from the internet, with the face cropped out and displaying a more physically developed female, in the hope that Mr. MacLean would believe these were images of her. [ 36 ] On the issue of credibility assessments, the Crown reviewed the evidence of both the complainant and Mr. MacLean, and asked the jury to accept what the complainant said as truthful. The comment made by Crown counsel to the jury – “ I am going to give you my reasons why I think [the complainant’s] is the evidence that you should accept” – is appropriate (Transcript, September 21, 2017, at 25).

Defence counsel did similar, asking the jury to accept Mr. MacLean’s version – “ I suggest to you that there is no reason why you should not accept [Mr. MacLean’s] testimony” (Transcript, September 21, 2017, at 12). [ 37 ] Jurors make credibility assessments. It is appropriate, and expected, that counsels’ closing submissions address witness credibility.

In commenting on witness credibility, the Crown did not suggest that the jury’s task was limited choosing the more believable of the two competing stories. [ 38 ] More importantly, the instructions of the trial judge to the jury were clear that the jury’s task was not limited in that way. The judge (when paraphrasing the third step of the standard instructions from R. v. S. (W.D.) ) advised the jury that its task was not concluded even if members of the jury rejected all of Mr. MacLean’s evidence, viz :

Even if you do not believe Mr. MacLean’s evidence, if on the entirety of the evidence, including his evidence, you are left with a reasonable doubt whether he believed [the complainant] was at least 16 years of age, and whether he took all reasonable steps in the circumstances to ascertain her age, you must find him not guilty . (Transcript, September 21, 2017, at 67-68) This instruction was sufficient to alert the jury that the case was not simply a credibility contest. Even if jurors rejected Mr.

MacLean’s credibility entirely, they were obliged to find him not guilty if, on the entirety of the evidence, they were left with a reasonable doubt. [ 39 ] The jury instructions were adequate, and in particular, sufficient to remedy any prejudice arising from Crown counsel’s closing submissions. The judge properly explained the legal principles to be applied to the mistake of age defence, the burden of proof for that defence, and how the evidence related to the defence. There was no prejudice to trial fairness. [ 40 ] I would dismiss the conviction appeal.

Did the trial judge err in finding that the mandatory minimum sentence under s. 271 (a) – one-year sentence where the complainant is under 16 years – was a s. 12 Charter infringement that was not justified under s. 1 ? [ 41 ] Crown counsel confirms that, because the constitutional validly of s. 271 (

a) of the Criminal Code was being challenged, notice was given to the Attorney General for Canada, and to the Attorney General for the Province, in compliance with s. 57 of the Judicature Act , R.S.N.L. 1990, c. J-4 . Both Attorneys General elected not to participate. [ 42 ] Since the introduction of the Charter , mandatory minimum sentences imposed by Parliament have been subject to the scrutiny of s. 12 of the Charter . That

section provides: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment”. The decisions of R. v. Nur , 2015 SCC 15 , [2015] 1 S.C.R. 773 , and R. v. Lloyd , 2016 SCC 13 , [2016] 1 S.C.R. 130 , expose the tension between mandatory minimum sentences and s. 12 of the Charter . These decisions indicate that there is a high threshold to pass before a court can find that a mandatory minimum sentence constitutes “cruel and unusual … punishment under s. 12 .

As noted in Lloyd , at para. 24 , ‘It must be so excessive as to outrage standards of decency’ and ‘abhorrent or intolerable’ to society”. (citations omitted). [ 43 ] The analytical process to follow when a mandatory minimum sentence is challenged is set out by the majority in Nur . First, the court must determine what constitutes a proportionate sentence for the offence based on the objectives and principles of sentencing in the Criminal Code (para. 46).

Second, it must decide, bearing the proportionate sentence in mind, whether applying the mandatory minimum would result in a grossly disproportionate sentence for the offender before the court (para. 46). Third, if the sentence is not grossly disproportionate for that offender, the court must then consider whether any "reasonably foreseeable applications" of the provision will result in grossly disproportionate sentences for other offenders (para. 77).

If the answer to either of the last two questions is yes, then the mandatory minimum sentence is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter (para. 46). [ 44 ] The trial judge in the current matter proceeded directly to the third step of the analytical process. Based on that third step the trial judge determined, after reviewing various reasonably foreseeable applications or hypotheticals, that s. 271 (

a) would result in grossly disproportionate sentences and an infringement of s. 12 of the Charter : [19] There are in my view many reasonable hypotheticals for which a term of imprisonment of one year would be a grossly disproportionate sentence and accordingly it is my determination that the mandatory minimum sentence provided by

section 271 (

a) contravenes

section 12 of the Charter . He found that this infringement of s. 12 is not justified under s. 1 of the Charter , and is of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982 : [23] … [I]t is my determination that the mandatory minimum sentence under

section 271(

a) cannot be saved under

section 1 of the Charter and therefore is declared to be of no force and effect. [ 45 ] In his reasons the trial judge correctly stated the analytical framework arising from the Nur and Lloyd decisions for assessing the constitutionality of the mandatory minimum sentence under s. 271(a). Although he did not follow the steps in the order suggested in Nur , it made no difference to the result. That is because, a finding at the third step that the reasonably foreseeable applications of s. 271 (

a) will impose grossly disproportionate sentences on others, still results in a Charter infringement, irrespective of the outcome at the first and second step. [ 46 ] There was no error in the trial judge’s conclusion that the mandatory minimum sentence in s. 271 (

a) fails the ‘reasonably foreseeable applications’ test. I do not intend to reproduce the hypotheticals used by the trial judge as the ‘reasonably foreseeable applications’. These, and others canvassed in similar court decisions, collectively establish that the mandatory minimum one-year term can result in a grossly disproportionate sentence.

I reject the Crown’s argument that the hypotheticals used by the trial judge would not qualify under the Nur analysis as ‘reasonably foreseeable applications’. [ 47 ] The Crown’s argument on this point was that the hypotheticals used, while not unrealistic, were borderline cases where the Crown was likely to exercise discretion and not proceed with a prosecution: “… [A] Crown attorney is unlikely to proceed with a prosecution of the hypothetical fact scenarios referenced by the trial judge” but “might proceed with the hypothetical of the uncle open-mouth kissing his young niece … [and] elect to proceed summarily …” (Factum of the Crown, at paras. 113-114.) [ 48 ] The Crown’s ability to make these discretionary decisions is not a justification for rejecting the trial judge’s hypothetical fact scenarios as unreasonable.

Nur , at para. 86 , rejected a similar argument, “To accept this argument would result in replacing a public

hearing on the constitutionality of [a statute] before an independent and impartial court with the discretionary decision of a Crown prosecutor, who is in an adversarial role to the accused.” The constitutionality of a statute, or a provision within a statute, cannot rest on an expectation that the Crown will exercise its discretion properly, see R. v. Lavallee, Rackel & Heintz , 2002 SCC 61 , [2002] 3 S.C.R. 209 , at para. 45 . [ 49 ] The trial judge’s conclusion on the constitutional invalidity of the mandatory minimum sentence under s. 271(

a) is consistent with conclusions made by appellate courts in other Canadian jurisdictions. In R. v. Hood , 2018 NSCA 18 ; Caron Barrette c. R. , 2018 QCCA 516 ; R v. JED , 2018 MBCA 123 ; R. v. Scofield , 2019 BCCA 3 ; R. v. Ford , 2019 ABCA 87 ; and R. v. B.J.T. , 2019 ONCA 694 , the courts addressed the constitutional validity of the mandatory minimum one-year sentence for sexual interference of a person under 16. Although these appellate court decisions related to s. 151 (a) – sexual interference of a person under 16 – the same outcome applies under s. 271 (a) – sexual assault of a person under 16. The “touching” required to establish sexual interference under s. 151 (

a) is one and the same as the “force” required to establish sexual assault under s. 271 . [ 50 ] There are trial level decisions dealing directly with s. 271 (a), and which found the mandatory minimum one-year sentence to be constitutionally invalid due to the infringement of s.12 of the Charter . Examples include: R. v. Lafferty , 2020 NWTSC 4 ; R. v. Y.H. , 2019 YKSC 28 ; R. v. Hussein , 2017 ONSC 4202 ; R. v. Gordon , 2018 ONSC 6217 ; R. v. E.R.D.R. , 2016 BCSC 684 ; and R. v.

E.R.D.R. , 2016 BCSC 1759 . [ 51 ] It is only in exceedingly rare cases that a s. 12 Charter infringement is justified under s. 1, see Nur , at para. 111 and R. v. Boudreault , 2018 SCC 58 , [2018] 3 S.C.R. 599 , at para. 97 . The Crown conceded at the outset of this appeal that a s. 12 Charter infringement is this matter could not be justified by s. 1. [ 52 ] The trial judge did not err in finding that the provision within s. 271(a) – establishing a minimum one-year sentence where the complainant is under 16 years – was a s. 12 Charter infringement that was not justified by s. 1.

Did the trial judge err by imposing a demonstrably unfit sentence? [ 53 ] The Crown contends the judge erred in two ways, leading to a demonstrably unfit sentence: (1) failing to give primary consideration to the sentencing objectives of denunciation and deterrence, and (2) finding that Mr. MacLean’s actions involved a lower level of moral blameworthiness. The Crown says that the 90-day sentence imposed by the trial judge is demonstrably unfit and that a fit sentence, at a minimum, would be three years.

Leave to appeal [ 54 ] Before addressing the question of whether the trial judge erred in imposing the sentence, the Crown must, pursuant to s. 676(1) (

d) of the Criminal Code , obtain leave to appeal. The test to be applied in deciding whether leave should be granted involves determining if the appeal is frivolous in the sense of having no arguable basis or sufficient merit, see R. v. Noseworthy , 2021 NLCA 2 , at para. 10 . A review of sentencing precedents involving similar circumstances, such as R. v. Payne , 2012 NLCA 72 , 330 Nfld. & P.E.I.R. 181 , leads to the conclusion that there is an arguable basis for the Crown's submission that a 90-day sentence for sexual assault of a 12- year-old, where there is vaginal intercourse, is demonstrably unfit.

Accordingly, I would grant leave to appeal. Primary consideration to denunciation and deterrence [ 55 ] Parliament has directed (under s. 718.01 of the Criminal Code ) that, in determining a fit sentence for child sexual offenders, a court must give primary consideration to denouncing the adult's conduct and to deterring the adult and others from similar conduct.

Despite acknowledgement of this legislated obligation, the reasons of the trial judge reveal that primary consideration was not given to denunciation and deterrence, and instead, was given to the sentencing objective of rehabilitation. [ 56 ] The failure to give p rimary consideration to the objectives of denunciation and deterrence, where s. 718.01 is engaged, is an error in principle, see R. v. Branton , 2013 NLCA 61 , 341 Nfld. & P.E.I.R. 329 , at para. 27 and R. v. R.B. , 2019 NLCA 22 , at para. 30 . [ 57 ] The trial judge’s reasons overall expose his primary focus on rehabilitation.

At paragraph 38, the judge noted that Mr. MacLean was in the autumn semester of his final year of university at the time of sentencing, and anticipated graduating with a Bachelor of Engineering degree the following spring. The intermittent sentence was crafted to avoid any interruption of that final year of studies. Mr. MacLean’s work term, his weekday routine, and his planned university graduation date were not impacted by the sentence. In that way, the sentence focused on rehabilitation.

The trial judge acknowledged that intermittent service of a sentence was only available if the sentence was 90 days or less, and that an intermittent sentence served on weekends was the only way that Mr. MacLean would be able to continue his work and studies, and still graduate on schedule: [41] … I do not believe it is necessary in pursuit of the goals of general deterrence and denunciation to impose a sentence that would result in Mr. MacLean having to discontinue his university education. [42] Under the Criminal Code , only a sentence of 90 days' imprisonment or less can be served on an intermittent basis.

Such a sentence should allow Mr. MacLean to continue with his work term placement and continue with the completion of his last academic semester this winter. … [ 58 ] Part of the rationale behind the s. 718.01 obligation to give primary consideration to the sentencing objectives of denunciation and deterrence is to afford some reparation to young victims who need reassurance that they are not to be blamed, see Branton , at para. 19 .

A sentence designed to minimize interruptions in an offender’s daily life and aspirations, and to facilitate continuing education, offers little reassurance in this regard to a young victim like the complainant. A light sentence, focused on rehabilitation, for a crime of this nature, is more likely to have the opposite effect. Indeed the complainant’s testimony, as referenced by the trial judge in his reasons, suggests that she was blaming herself: “She did … express regret and remorse and stated that she now felt that it was wrong to have engaged in the sexual activity in question” (para. 39).

[ 59 ] The trial judge described the complainant as a “willing participant” (para. 32). D e facto consent by a child is not a legally relevant factor at sentencing, see Branton , at para. 19 , and R. v. A.B. , 2015 NLCA 19 , 365 Nfld. & P.E.I.R. 160 at para. 29 . The reference to that factor, the brief and intermittent nature of the sentence imposed, and the focus on maintenance of Mr.

MacLean’s university studies, collectively illustrate that denunciation and deterrence were secondary considerations for the trial judge. [ 60 ] Every sentence will have some element of denunciation and deterrence; however, a 90-day sentence served on weekends, is so light for this crime in these circumstances that it could only have been justified if aimed primarily at rehabilitation.

In A.B. , at para. 26 , Welsh J.A., writing for a unanimous panel, reviewed the relevant sentencing authorities and concluded that the low end of the range for this crime would be around three years: [26] These decisions indicate that a term of imprisonment of three years is at the low end of the range in sentencing an adult offender for sexual assault involving intercourse where the complainant is below the age of consent. … [ 61 ] As stated above, the failure by the judge to give primary consideration to the sentencing objectives of denunciation and deterrence was an error in principle.

Lower level of moral blameworthiness [ 62 ] The Crown agreed that Mr. MacLean should be sentenced on the basis that the jury finding of guilt was based on Mr. MacLean’s failure to take all reasonable steps to ascertain the complainant’s age. The trial judge, relying on this concession, found that Mr. MacLean had a lower level of moral blameworthiness: [37] Thus, in determining a fit and appropriate sentence for Mr.

MacLean, I must take into account that he has a lower level of moral blameworthiness than someone in the same position who proceeds to engage in sexual activity despite knowing the age. [ 63 ] There may be a slightly lower level of moral blameworthiness, comparing an offender with knowledge that a victim is underage, to an offender who does not know if the victim is underage and takes no steps to determine age. However, the difference, if any, is not significant and cannot support a significant departure from the established range of sentence.

In both situations, there is a high degree of moral blameworthiness. [ 64 ] In Friesen , Wagner C.J. and Rowe J., for a unanimous Court, while acknowledging that proper weight must be given to the offender’s underlying attitudes in assessing moral blameworthiness (para. 89), recognized that any sexual assault on a child is highly morally blameworthy: [88] Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child. … [ 65 ] In R. v.

Morrison , 2019 SCC 15 , [2019] 2 S.C.R. 3 , at para. 153 , the majority expressed a similar sentiment in the context of another child sexual offence – “Child luring is a serious offence … and involves a high degree of moral blameworthiness”. The majority in Morrison made no distinction in blameworthiness as between an offender with knowledge that a victim is underage, and an offender who does not know if the victim is underage and takes no steps to determine age. [ 66 ] The trial judge erred in placing too much emphasis on a perceived lower level of moral blameworthiness in arriving at the 90-day sentence.

Demonstrably unfit sentence [ 67 ] The normal range of sentence for a conviction for sexual assault involving intercourse where the complainant is under the age of consent is three to five years, see R.B. , at para. 31 . The errors made by the trial judge – failure to give primary consideration to denunciation and deterrence and overemphasizing a perceived differential in moral blameworthiness – resulted in a sentence that was well below that range. It is evident that the errors had an impact on the sentence, and resulted in a sentence that was demonstrably unfit.

In these circumstances, the 90-day sentence imposed at trial must be varied, and replaced with a fit sentence pursuant to section 687(1) of the Criminal Code .

FIT SENTENCE [ 68 ] In Friesen , Wagner C.J. and Rowe J., for a unanimous Court, made general comments about the approach to sentencing adults who commit sexual crimes against children, noting that “mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances” (para. 114). [ 69 ] There have been several occasions where this Court has indicated that a term of imprisonment of three years is at the low end of the range in sentencing adults who commit sexual crimes against children that involve intercourse. [ 70 ] In R. v.

Vokey , 2000 NFCA 14 , 186 Nfld. & P.E.I.R. 1 , a 41-year-old male, in a position of trust vis-à-vis the 15-year-old victim, engaged in a single incident of sexual intercourse and several incidents of sexual touching. Cameron J.A., writing for the majority, said that the appropriate range for sexual assault, where the offender is an adult and in a position of trust vis-a-vis the child victim, absent special circumstances, is three to five years (para. 19). A sentence of two years and four months (three years less eight months credit for time already served on a conditional sentence) was imposed. [ 71 ] In R. v.

Barrett , 2012 NLCA 46 , 324 Nfld. & P.E.I.R. 246 , a 22-year-old male sexually assaulted three girls aged 14, 14 and 12, on three separate occasions. Two of the sexual assaults involved intercourse. Hoegg J.A., writing for a unanimous panel, agreed with the trial judge’s comment that “the normal range of sentencing for sexual assault involving intercourse is three to seven years” (para. 43). The appeal was allowed. The new sentences imposed for the sexual assaults that involved intercourse, prior to application of the totality

principle, were three years six months, and three years. The latter of these two consecutive sentences was reduced to one year after application of the totality principle, resulting in a combined sentences (for the two sexual assaults that involved intercourse) of four years and six months. [ 72 ] In Payne , at para. 8 , Welsh J.A., writing for a unanimous Court, said that “a three year term of imprisonment for sexual assault of a thirteen year old girl involving intercourse is at the low end of the range”.

The 34-year-old offender in Payne had a single encounter with the 13-year-old victim, during which she agreed to accompany him to a private residence where they engaged in sexual intercourse. Counsel for Mr.

Payne conceded that the three-year sentence was appropriate and did not pursue that aspect of the appeal. [ 73 ] In R.B. , at para. 31 , Welsh J.A., writing for a unanimous panel, recognized “the normal range of sentence of three to five years for a conviction for sexual assault involving intercourse where the complainant is fourteen years of age”. [ 74 ] In A.B. , a 23-year-old female offender, with no previous criminal record, had sexual intercourse with the 12-year-old-male on two occasions.

Welsh J.A., for a unanimous Court, again confirmed that a three-year term of imprisonment is at the low end of the range. However, the Court imposed a sentence of 20 months because that was what the Crown had sought: “I would be reluctant to impose a term of imprisonment longer than was requested by the Crown” (para. 37).

A.B. included a list of relevant factors to assist in the determination of an appropriate sentence for sexual assault involving intercourse where the complainant is below the age of consent: [26] These decisions indicate that a term of imprisonment of three years is at the low end of the range in sentencing an adult offender for sexual assault involving intercourse where the complainant is below the age of consent.

The range serves to assist the court in determining a sentence consistent with the principle that similar sentences should be imposed on "similar offenders for similar offences committed in similar circumstances" (

section 718.2 (

b) of the Criminal Code ). Determination of an appropriate sentence will, of course, depend on the facts of the particular case. A review of the case law provides a helpful

summary of some relevant factors: 1. Position of trust, more serious where the offender is in a position of authority; 2. Age of the victim, being less serious where the victim is close to the age of consent; 3. Significant age difference between the parties; 4. Sexual encounters occurring over a period of time; 5. Manipulation of the victim; 6. Planned or calculated conduct by the offender; 7. Knowledge of and acting on the victim's vulnerability; 8. Continuation of conduct after being warned; 9. Particular impact on the victim; 10.

Lack of remorse or acceptance of responsibility; placing of blame on the victim or others; limited appreciation of the harm caused; minimization of the offence; 11. Previous criminal record; 12. Prospects for rehabilitation and risk of re-offending; 13. Positive pre-sentence report; 14. Guilty plea; and 15. Willingness to access counselling. [ 75 ] There was no guilty plea by Mr.

MacLean in the current matter, but several of the other factors set out in A.B. , including, single sexual encounter, not in a position of trust, no previous criminal record, good prospects for rehabilitation, low risk of re-offending, and positive pre-sentence report, favour a sentence at the low end of the range that was set out in Vokey , Barrett, Payne , R.B. ,and A.B. Considering the facts and circumstances unique to the current matter, an appropriate sentence for Mr. MacLean is three years.

This duration satisfies the objectives of sentencing, with primary consideration given to denunciation and deterrence, and satisfies the parity principle. RE-INCARCERATION [ 76 ] Mr. MacLean made submissions that he should not be re-incarcerated in the event that his sentence was increased on appeal. [ 77 ] Mr. MacLean has completed service of his sentence – 90 days in jail – and the two years’ probation. The Post-Sentence Report of September 23, 2020 is positive and indicates that there have been no incidents of concern. Mr.

MacLean is in a stable common law relationship; he was working full time until a recent layoff related to COVID-19 work slowdown. [ 78 ] The circumstances under which this Court may stay the execution of the new sentence were discussed by O’Brien J.A. in Noseworthy , at paras. 129-151 . The overriding principle to be considered in terms of whether to incarcerate or re-incarcerate an offender who has served a sentence originally imposed, and whose sentence has increased on appeal, is whether it is in the interests of justice to do so.

This Court has indicated in the past that there are “limited circumstances” ( R. v. Kane , 2012 NLCA 53 , 325 Nfld. & P.E.I.R. 78 , at para. 45 ) or “exceptional circumstances” ( R. v. English , 2012 NLCA 64 , 328 Nfld. & P.E.I.R. 14 , at para. 33 ) when it is in the interests

of justice to stay execution of a new sentence. [ 79 ] One of the important factors to consider in deciding whether a matter falls within the limited or exceptional circumstances, is whether the sentencing objectives of denunciation and deterrence can be adequately served without re-incarcerating, see R. v. Kleykens , 2020 NSCA 49 , at para. 87 . That factor is especially important here because the errors of the trial judge included a failure to give primary consideration to those two objectives.

Whether the objectives of denunciation and deterrence can be met is determined on a case-by-case basis, see Noseworthy , at para. 148 . Other factors relevant to deciding whether to re-incarcerate are discussed by White J.A. in R. v. Taylor , 2013 NLCA 42 , 337 Nfld. & P.E.I.R. 24 , at para. 65 . [ 80 ] The disparity between the two sentences is a significant factor favouring re-incarceration.

The comments of Welsh J.A. (for a unanimous panel) in English , addressing the importance of respecting the parity principle, are relevant: [33] While there are exceptional circumstances when an offender who has been released from prison will not be required to serve the remainder of a sentence that has been varied on appeal, that exception does not apply in this case. A variation on appeal resulting in a lengthened sentence occurs when a trial judge has made an error. The varied sentence is, in fact, the sentence that should have been imposed in the first instance.

To accept the submission that an accused, once released, should not be returned to prison would be inconsistent with the principle of sentencing requiring that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances" (

section 718.2 (

b) of the Criminal Code ). … [ 81 ] Regarding the seriousness of the offence, this is also a factor favouring re-incarceration.

The comments of Wagner C.J. and Rowe J. (for a unanimous Court) in Friesen , signal that any sexual offence against a child is serious and courts are obliged to impose sentences that are commensurate with the gravity of the offence: [42] Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code . … … [76] Courts must impose sentences that are commensurate with the gravity of sexual offences against children.

It is not sufficient for courts to simply state that sexual offences against children are serious . The sentence imposed must reflect the normative character of the offender's actions and the consequential harm to children and their families, caregivers, and communities (citations omitted). … [ 82 ] On balance, consideration of all the relevant factors, in Mr. MacLean’s circumstances, favours re-incarceration.

I recognize that rehabilitation may be jeopardized; however, the significant disparity between the two sentences, the seriousness of this offence, and the primary consideration of the objectives of denunciation and deterrence, mean that this matter does not fall within the limited or exceptional circumstances where the Court is justified in ordering a stay of the new sentence.

DISPOSITION [ 83 ] I would dismiss the appeal against conviction; I would dismiss the appeal regarding the striking of the mandatory minimum sentence; I would grant leave to appeal the sentence; I would allow the appeal against sentence. [ 84 ] The trial judge erred resulting in a demonstrably unfit sentence. The 90-day sentence, followed by two years’ probation, must be varied. An appropriate sentence is three years, less credit for the 90 days already served. [ 85 ] I would not interfere with the ancillary orders made by the trial judge under ss. 487.051 (DNA sample) and 490.012 (sex offender registration).

Leave to appeal against sentence granted; Appeal regarding mandatory minimum sentence dismissed; Appeal against sentence allowed; Cross-appeal against conviction dismissed.