R. v. MacLean, 2018 NLSC 209

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. MacLean , 2018 NLSC 209 Date : October 19, 2018 Docket : 201604G0203 Her Majesty The Queen v. Russell MacLean 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Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any document or broadcast or transmitted in any way. Before: Justice George L. Murphy Reasons for Judgment Given Orally Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: September 7, 2018 Date of Oral Judgment: October 16, 2018

Summary: The mandatory minimum sentence of one year imprisonment for an offence under

section 271 (

a) of the Criminal Code was found to be unconstitutional because it violated

section 12 of the Charter and was not saved by

section 1. As a result, the Court went on to determine a fit and appropriate sentence for Mr. MacLean without regard for the one year minimum and on the basis that he did not take all reasonable steps to ascertain the age of the victim instead of on the basis that he actually knew her age. The Court found this lower level of moral blameworthiness was a factor to be taken into account on sentencing. The Court imposed a sentence of 90 days imprisonment to

be served intermittently and a period of probation extending two years beyond completion of the intermittent sentence. The Court alsoimposed certain mandatory ancillary orders. Appearances: Trina D. Simms Appearing on behalf of Her Majesty The Queen Robert E. Simmonds, Q.C. and Ellen C. O’Gorman Appearing on behalf of Russell MacLean Authorities Cited: CASES CONSIDERED: R. v. Lloyd, 2016 SCC 13; R. v. Deyoung, 2016 NSPC 67; R. v. Nur, 2015 SCC 15; R. v. Atkins (1988), (NL CA), 69 Nfld. & P.E.I.R. 99, 4 W.C.B. (2d) 348 (Nfld. C.A.); R. v. Morrison, 2017 ONCA 582 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982 being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 REASONS FOR JUDGMENT Murphy, J.: INTRODUCTION AND BACKGROUND [1] On September 21, 2017, Mr. MacLean was committed by a jury of one breach of sexual assault under

section 271(

a) of theCriminal Code, R.S.C. 1985, c. C-46. The sexual assault involved a one-time encounter between Mr. MacLean and M.S. on June 1, 2015where Mr. MacLean and M.S. had sexual intercourse. M.S. was a few days short of her 13th birthday at the time of the sexual intercoursewith Mr. MacLean who was 21 years of age at the time having been born on May 18, 1994. [2] Mr. MacLean and M.S. had met through the social media platform, Snapchat, a number of months earlier and had exchangedmessages.

It was through this same social medial platform that they had arranged to get together in person for the first time and it wasthis first in-person meeting when the sexual activity took place. [3] Sentencing of Mr. MacLean was scheduled to November 20, 2017 to allow time for the preparation of a Pre-Sentence Report.Subsequently, Mr. MacLean changed counsel and this resulted in a further delay in sentencing. Mr.

MacLean’s new counsel brought anapplication filed on January 26, 2018 requesting that a pre-sentencing hearing be held pursuant to section 724(2) of the Criminal Code todetermine the factual foundation on which Mr. MacLean should be sentenced. [4] The underlying basis for the application for a section 724(2) hearing was that M.S. was under the age of legal consent at thetime the sexual activity between her and Mr. MacLean occurred. While she did agree to engage in sexual activity with Mr. MacLean, shecould not lawfully consent. In that regard,

section 150.1(1) of the Criminal Code is applicable and provides: 150.1(1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under

section 151 or 152 or subsection 153(1),160(3) or 173(2) or is charged with an offence under

section 271, 272 or 273 in respect of a complainant under the age of 16 years, it isnot a defence that the complainant consented to the activity that forms the subject-matter of the charge. [5] Also relevant is

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

section 151 or 152, subsection 160(3) or 173(2), or

section 271, 272 or 273 that the accusedbelieved that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accusedtook all reasonable steps to ascertain the age of the complainant. [6] The combined effects of these two provisions is that a person can be found guilty of sexual assault involving a person underthe age of 16 years who willingly participates if the person charged: a. did not honestly believe that the complainant was at least 16 years of age; or

b. did not take all reasonable steps to ascertain the complainant’s age. [7] In the case of a jury trial, it is important to note that the members of the jury need not be all on the same page in terms ofthese two possibilities in order for there to be a finding of guilt. Instead, it is sufficient that the jury be unanimous in concluding that oneof these possibilities existed.

Some could believe that the first of these two possibilities existed and the remainder could believe that thesecond of the two possibilities existed. [8] Due to the secret nature of jury deliberations, it is not possible to know the basis upon which it found Mr. MacLean guilty.By its application under section 724(2), counsel for Mr. MacLean was seeking a finding that he should be sentenced on the basis that theguilty verdict was based on him having failed to take all reasonable steps to ascertain the complainant’s age.

A hearing of the section724(2) application became unnecessary because the Crown consented to the application and agreed that Mr. MacLean should besentenced on the basis that his finding of guilt was based on him having failed to take all reasonable steps to ascertain the age of M.S.The sentencing hearing for Mr. MacLean proceeded on that basis on September 7, 2018. [9] The offence for which Mr. MacLean was found guilty, namely a violation of

section 271(

a) of the Criminal Code, carries amandatory minimum sentence of one year imprisonment. In advance of the sentencing hearing, counsel for Mr. MacLean had givennotice that he would be challenging the mandatory minimum sentence under

section 271(

a) on the basis that it violated

section 12 of theCanadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 being

Schedule B to the Canada Act 1982 (UK), 1982, c.11, the constitutional guarantee against cruel and unusual punishment and was not saved by

section 1 of the Charter. issues Does the one year mandatory minimum term of imprisonment under

section 271(

a) contravene

section 12 of the Charter? [10] The Supreme Court of Canada outlined the procedure for considering the constitutionality of a mandatory minimum sentence inits decision in R. v. Lloyd, 2016 SCC 13. At paragraph 22, the majority of the Court said: 22 The analytical framework to determine whether a sentence constitutes a “cruel and unusual” punishment under s. 12 of the Charterwas recently clarified by this Court in Nur.

A sentence will infringe s. 12 if it is “grossly disproportionate” to the punishment that isappropriate, having regard to the nature of the offence and the circumstances of the offender: Nur, at para. 39; R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, at p. 1073. A law will violate s. 12 if it imposes a grossly disproportionate sentence on the individualbefore the court, or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others: Nur, atpara. 77. [11] Thus, a mandatory minimum sentence provision will violate

section 12 if the mandatory minimum is found to be grosslydisproportionate to the appropriate punishment for the offender before the court having regard to his or her circumstances and thecircumstances of the offence. It will also violate

section 12 if its reasonably foreseeable applications would result in the imposition ofgrossly disproportionate sentences. This second manner in which the constitutionality of a statutorily prescribed minimum sentence canbe challenged allows a court to consider reasonable hypothetical factual scenarios. [12] In this case I shall consider the question of the constitutionality of the mandatory minimum period of imprisonment by firstexamining it from the perspective of reasonable hypothetical factual scenarios. I am doing that because in my view that makesabundantly good sense.

Undoubtedly it is always going to be the reasonable hypothetical which will pose the greatest challenge to theconstitutionality of a mandatory minimum sentence. The use of a reasonable hypothetical allows an examination of the mandatoryminimum in relation to the least serious factual scenario, in terms of both offence and offender, that could attract the minimum penalty.

Ifsuch an examination does not result in a finding of unconstitutionality then I do not see how an examination from the perspective of theoffender before the court and the circumstances of his or her offence could result in a finding of unconstitutionality. [13] Prior to moving to examine the constitutionality based on reasonable hypotheticals, I would note that there is no doubt there is ahigh bar to be reached before a court can find that a mandatory minimum sentence is constitutionally cruel and unusual punishment.

Thatis because to meet the test of gross disproportionality, a mandatory minimum sentence must be found to be more than merely excessive.In this regard, reference is made to paragraph 24 of the Supreme Court of Canada’s decision in Lloyd: 24 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 Miller v.

The Queen, (SCC), [1977] 2 S.C.R. 680, at p.688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6 , [2008] 1 S.C.R. 96, at para. 14.

The wider the range of conduct andcircumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whomthe sentence would be grossly disproportionate. [14] The Court expanded on the issue raised in the last sentence of paragraph 24 at paragraph 35 where it said: 35 As I have already said, in light of Nur, the reality is this: mandatory minimum sentences that, as here, apply to offences that can becommitted in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutionalchallenge.

This is because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatoryminimum will be found unconstitutional. If Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, itshould consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences. [15] I note that here we are dealing with an offence under

section 271 of the Criminal Code and there is probably no other CriminalCode provision which captures a wider range of conduct and circumstances. [16] In this case, the Crown has, in my view, conceded that in respect of

section 271 it is not difficult to come up with a reasonablehypothetical factual scenario for which the mandatory minimum sentence will be found to be unconstitutional. In this regard, the Crownstated in its factum at paragraph 32:

32 Thus while it does appear likely in the several cases that have considered the constitutionality of the mandatory minimum in relation to a conviction of

section 271 (

a) in relation to a minor that there are reasonably foreseeable hypothetical situations in which a one year jail sentence would be grossly disproportionate, it does not automatically follow that the sentence will be grossly disproportionate in every case, in relation to every offender. [ 17 ] In considering the issue of reasonable hypotheticals, I like the analysis that was carried out by the Honourable Judge Del W. Atword of the Provincial Court of Nova Scotia in the case of R. v.

Deyoung , 2016 NSPC 67 at paragraphs 42 – 46 : 42 Consider the effect of the law relating to age of consent upon criminal liability and penalty. The Criminal Code describes a sharp liability gradient for sexual assault and related offences. Sub-section 150.1(1) of the Code fixes the age for consenting to sexual activity in Canada at sixteen. However, the remaining subsections create a number of close-in-age exemptions from criminal responsibility. It is useful to my analysis to set out the relevant portions of the statute, as in effect at the time of this offence: Consent no defence 150.1

(1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under

section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under

section 271 , 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge. Exception - complainant aged 12 or 13

(2) When an accused is charged with an offence under

section 151 or 152, subsection 173(2) or

section 271 in respect of a complain- ant who is 12 years of age or more but under the age of 14 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused (

a) is less than two years older than the complainant; and (

b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant. Exception - complainant aged 14 or 15

(2.1) When an accused is charged with an offence under

section 151 or 152, subsection 173(2) or

section 271 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if (

a) the accused (

i) is less than five years older than the complainant; and (ii) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant; or (

b) the accused is married to the complainant. 43 Take the case of an adult, one-day shy of the adult’s twentieth birthday, having non-exploitive, consensual and minimally forceful sexual contact with a 15-year-old minor on the minor’s birthday. Assume no position of trust or dependency. In virtue of sub-s. 150.1(2.1) of the Code , the adult would have a complete defence in virtue of being less than five years older than the complainant. But change the scenario by a day or two—a just-twenty adult and a just-fifteen, or fifteen-less-a-day minor? The subsection would no longer

offer a defence. 44 Consider next an adult eighteen years of age having consensual, non–exploitive sexual contact with a minor fourteen years of age lessa day. No close-in-age-exemption would be available to the adult in virtue of sub-s. 150.1(2) of the Code which allows only a two-yeardifference in age for minors under fourteen.

But if the adult and the minor were to wait until the minor’s birthday the next day, the five-year exemption under 150.1(2.1) would apply, and no criminality would arise. 45 It is hard to imagine in these hypothetical cases that, with the passage of but a few days, so great an incipient level of criminalitywould be inherent in a person’s conduct as to justify constitutionally the mandatory-minimum penalty in para. 271(

a) of the Code. 46 These are reasonably foreseeable hypotheticals, and for the notional offenders caught just outside the close-in-age exemptions, orhaving committed acts at the lower end of the spectrum of seriousness, the imposition of the mandatory minimum would be harsh;indeed, so excessive as to outrage standards of civil decency, and would be abhorrent and intolerable to society. [18] Counsel for Mr.

MacLean in its factum has also posited a reasonable hypothetical for which a one year sentence in my viewwould be grossly disproportionate for the hypothetical offender. [19] There are in my view many reasonable hypotheticals for which a term of imprisonment of one year would be a grosslydisproportionate sentence and accordingly it is my determination that the mandatory minimum sentence provided by

section 271(a)contravenes

section 12 of the Charter. [20] A finding of contravention of the Charter does not end the analysis. A further step is required and that is whether the breach issaved by

section 1 of the Charter. In the

section 1 analysis, the burden shifts to the Crown. The Supreme Court of Canada in R. v. Nur,2015 SCC 15, at paragraph 111 outlined the

section 1 analysis: 111 In order to justify the infringement of the respondents’ s. 12 rights under s. 1 of the Charter, the Attorney General of Ontario mustshow that the law has a pressing and substantial objective and that the means chosen are proportional to that objective. A law isproportionate if (1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right in question;and (3) there is proportionality between the deleterious and salutary effects of the law: R. v. Oakes, (SCC), [1986] 1S.C.R. 103.

It will be difficult to show that a mandatory minimum sentence that has been found to be grossly disproportionate under s.12 is proportionate as between the deleterious and salutary effects of the law under s. 1. [21] In this case, the Crown in its factum conceded that courts have constitutionally determined that a

section 12 violation is notjustified by

section 1 of the Charter. Accordingly, the Crown did not attempt to justify a breach in its argument in the event one wasfound to exist. As such, I do not see the need to conduct a detailed

section 1 analysis. Suffice it to say that any attempt at justificationunder

section 1 would certainly fail when analyzing whether the mandatory minimum is minimally impairing of the right not to besubject to cruel and unusual punishment.

In this regard, I note that in Nur the Supreme Court of Canada said at paragraph 117: 117 Parliament could have achieved its objective by drafting an offence with a close correspondence between conduct attractingsignificant moral blameworthiness — such as those engaged in criminal activity or conduct that poses a danger to others — and themandatory minimum, rather than a sweeping law that includes in its ambit conduct attracting less blameworthiness for which themandatory minimum sentence would be grossly disproportionate. The government has not discharged its burden on this branch of theOakes test.

There are less harmful means of achieving the legislative goal. [22] While in Nur, there was a different mandatory minimum sentence provision under consideration, it is my view that the analysisapplies equally to the mandatory minimum sentence in this case. [23] As such, it is my determination that the mandatory minimum sentence under

section 271(

a) cannot be saved under

section 1 ofthe Charter and therefore is declared to be of no force and effect. Fit and appropriate sentence [24] As a result of my finding that the minimum one year term of imprisonment is of no force and effect, I must now determine a fitand appropriate sentence without regard for the mandatory minimum. [25] The position of the Crown at the sentencing hearing was that even if I find there to be a violation of

section 12 of the Charter, afit and appropriate sentence for Mr. MacLean remained a 12 month period of imprisonment combined with a two year probation orderand an order under

section 487.051, commonly referred to as a DNA order and an order under the Sex Offender Information RegistrationAct. [26] Counsel for Mr. MacLean argued that a fit and appropriate sentence was the required ancillary orders, a substantial period ofprobation and a suspended sentence. Alternatively, the position was advanced that if the Court determined that a period of incarcerationwas required as opposed to a suspended sentence then a period of no greater than 90 days to be served intermittently was appropriate onthe facts of this case. [27] The starting point for consideration of a fit and appropriate sentence is the Criminal Code.

Section 718 of the Code provides: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for

the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

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

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 or to the community. [ 28 ] Also relevant for consideration are sections 718.01, 718.2(a)(i)(ii.1) and 718.2(b), (

d) and (

e) which provide: 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

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

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, . . . (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, . . . 718.2(

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; . . . (

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

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

[29] I agree with the submission of the Crown that in imposing a fit and appropriate sentence in this case, primary considerationshould be given to the objectives of denunciation and deterrence. That being said, a sentencing judge cannot lose sight of the othersentencing principles such as rehabilitation. There are many facts to be considered in determining an appropriate sentence as was statedby the late Chief Justice Goodridge in R. v. Atkins (1988), (NL CA), 69 Nfld. & P.E.I.R. 99, 4 W.C.B. (2d) 348 (Nfld.C.A.) said: There are many factors to be considered in imposing in any case.

In cases of sexual assault these factors include the extent of the assault(for sexual assault encompasses a very wide range of human misbehaviour), the degree of violence or force used, the impact of the crimeupon the victim, the family of the victim and the offender, the degree of trust involved, public abhorrence to the type of crime involved,the attitude of the offender to what he has done, his plea, the biological and psychiatric factors that lead to the commission of theoffence, the need for specific and general deterrence, the prospect of successful rehabilitation, the antecedents and age of the offender,the time spent in custody prior to trial and sentences imposed by other courts in Newfoundland and elsewhere in Canada.

Vengeance is not a factor. A sentence is designed to protect the public, not to abate its anger at a particular crime. As has frequently beensaid, protection is attained through a balance of deterrence and rehabilitation. Neither should overwhelm or negate the other. The properbalance will vary from case to case. [30] I do not intend to carry out an analysis of all of the various factors listed in Atkins as they relate to the circumstances of thiscase. I believe it is important to recognize, as stated by Goodridge, C.J., that sexual assault encompasses a wide range of humanbehaviour.

The type of conduct that can constitute a sexual assault can range from the touching of the leg of a person in a sexual way to aviolent rape. Not surprisingly, therefore the range of sentences for sexual assault is as wide ranging as the scope of human behaviour thatcan attract criminal liability under the offence of sexual assault. [31] I was referred to many sentencing authorities from both this jurisdiction and other jurisdictions in the factums filed by counselfor the Crown and counsel for Mr. MacLean.

These various sentencing authorities together present a wide variation in the range ofsentences for offences of sexual assault. This is not surprising given the factual differences underlying these authorities. [32] In terms of the facts of this case, I noted at the outset that the offence for which Mr. MacLean was found guilty arose out of asingle meeting between him and M.S. which involved them having sexual intercourse. He was 21 years of age and M.S. was a few daysshort of her 13th birthday.

The two had met via the social media platform, Snapchat, and had begun exchanging messages whichprogressed to them exchanging nude photos and ultimately this led to their one in-person meeting where the sexual activity occurred.M.S. was a willing participant in both the exchange of messages and pictures and the sexual activity which occurred. Mr. MacLeantestified at trial that he did not know the age of M.S. until the day after the sexual activity occurred.

The Crown accepted that Mr.MacLean should be sentenced on the basis that he did not take all reasonable steps to ascertain the age of M.S. as opposed to on the basisthat he knew her age and proceeded to engage in the sexual activity despite knowing her age. [33] It is my view that there is a significant difference between a person who is 21 years of age having sexual intercourse with aperson under the age of legal consent when the 21 year old knows the age of the person versus the situation where the 21 year old doesnot know the age of the person and does not take reasonable steps to ascertain the age. [34] The Crown conceded that this latter scenario might be viewed as less morally blameworthy but stated that it does not equate tothe person being devoid of fault in the matter.

Obviously, this is true as without fault there would be no criminal liability. [35] The Ontario Court of Appeal recently commented on this issue in its decision in R. v. Morrison, 2017 ONCA 582, whichinvolved a case of child luring. In that case, like here, the accused was convicted not on the basis that he knew the age of the person hewas communicating with but on the basis that he failed to take all reasonable steps to ascertain the person’s age.

At paragraph 121, theCourt stated: 121 The Crown submits that, in determining what sentence would be appropriate without regard to the mandatory minimum, the trialjudge erred in concluding that Morrison's moral blameworthiness was diminished. I do not agree. The Crown failed to prove that theaccused believed he was communicating with an underage person. It did prove he failed to take reasonable steps to ascertain the age ofthe other person.

This degree of fault, negligence, taking into account what was known to Morrison, is significantly less blameworthythan the conduct of someone who, for example, deliberately sets about to lure a child. It is axiomatic that a person who commits anoffence by negligence is less morally blameworthy than someone who intentionally commits a criminal offence. In Creighton,McLachlin J. noted that "those causing harm intentionally must be punished more severely than those causing harm unintentionally": p.46 S.C.R.

She distinguished between the moral culpability for murder, which attracted a mandatory life sentence, and the moralculpability for manslaughter, for which there was no minimum sentence (pp. 48-49 S.C.R.): Murder entails a mandatory life sentence; manslaughter carries with it no minimum sentence. This is appropriate. Because manslaughtercan occur in a wide variety of circumstances, the penalties must be flexible.

An unintentional killing while committing a minor offence,for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness ofrisk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailoredto suit the degree of moral fault of the offender. [36] I agree with those comments of the Ontario Court of Appeal and those of McLachlin, J. referred to therein. [37] Thus, in determining a fit and appropriate sentence for Mr.

MacLean, I must take into account that he has a lower level of moralblameworthiness than someone in the same position who proceeds to engage in sexual activity despite knowing the age. [38] I must also consider in determining a fit and appropriate sentence Mr. MacLean’s circumstances and background. He has no

prior criminal record and is currently in the last year of a Bachelor of Engineering program at Memorial University. Presently, he is on a work term and has one academic term remaining in the winter of 2019 with an expected graduation date of spring 2019. A Pre-Sentence Report prepared in respect of Mr. MacLean assessed him at a low risk to re-offend. [ 39 ] In determining a fit and appropriate sentence I must also consider the impact of this incident on the victim who was just under 13 years of age when this offence occurred.

While the victim did not file a victim impact statement, she did in her testimony at trial express regret and remorse and stated that she now felt that it was wrong to have engaged in the sexual activity in question. [ 40 ] Considering the circumstances of this case and the purpose and principles of sentencing, I do not believe that a suspended sentence, as suggested by counsel for Mr. MacLean, at the low end of the range of recommended sentence would be appropriate. Based on my observations of Mr.

MacLean while in court and my reading of the Pre-Sentence Report, I believe the goal of specific deterrence has been achieved in this case. However, general deterrence is equally important and I am of the view that a suspended sentence would not send the appropriate message to further the goal of general deterrence. There is also the principle of denunciation to be considered. [ 41 ] As such, it is my view that a sentence greater than a suspended sentence is required in order to help achieve the goals of general deterrence and denunciation.

That being said, 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. At the same time, I believe it will satisfy the sentencing principles of general deterrence and denunciation.

I am also of the view that such a sentence is in the best interests of society in the circumstances of this case. [ 43 ] As a result, the sentence which I impose on Mr. MacLean for the offence of sexual assault under

section 271(

a) is a period of 90 days’ imprisonment to be served on an intermittent basis pursuant to section 732(1) of the Criminal Code . I will hear submissions from counsel immediately following the conclusion of this decision on the exact time periods for serving the sentence as I am not satisfied I have enough information to determine the appropriate times for serving of the intermittent sentence. In addition, Mr.

MacLean shall be subject to a probation order that shall be in place when he is not in confinement during the period that his intermittent sentence is being served and continuing for a period of two years from the date he completes serving his intermittent sentence. The probation order shall include the compulsory conditions contained in

section 732.1(2) of the Code and the no communication condition in

section 732.1(2)(a.1) shall apply with respect to the victim, M.S. Further, there shall be an order under

section 487.051 of the Criminal Code commonly referred to as a DNA order. Mr. MacLean shall also be subject to an order under

section 490.012 of the Criminal Code requiring him to comply with the provisions of the Sex Offender Registration Act for a period of 20 years as required by

section 490.013 of the Criminal Code . _____________________________ George L. Murphy Justice