R v. R.R.G.S. Date:, 2014 BCPC 170

Citation: R v. R.R.G.S. Date: 20140617 2014 BCPC 0170 File No: 22800 Registry: Hazelton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R. R. G. S. RULING ON THE APPLICATION AND REASONS FOR SENTENCE OF THE HONOURABLE JUDGE BIRNIE Counsel for the Crown: J. Fogel and L. Rusicka

Counsel for the Defendant: I. Lawson Place of Hearing: Hazelton , B.C. Date of Hearing: March 18 -20, 2014 Date of Judgment: June 17, 2014 [ 1 ] On August 15, 2013, after four days of trial in early July, I found Mr. S. guilty of one count of touching a person under the age of 16 years for a sexual purpose and one count of being unlawfully in a dwelling house with intent to commit an indictable offence contrary to ss. 151 and 349 of the Criminal Code . In addition Mr.

S. has pleaded guilty to one count of breach of undertaking from December, 2012 for consuming alcohol when he was on a condition to abstain. [ 2 ] Prior to the sentencing hearing Defence counsel filed an application that the mandatory minimum sentence of 90 days jail for the s.151 offence be found to be of no force and effect on the basis that it is inconsistent with ss. 7 and 12 of the Charter of Rights . That application, as well as the submissions of counsel with respect to sentence were heard together. [ 3 ] I am going to review the facts of the offence and the personal circumstances of Mr.

S., as well as the aggravating and mitigating factors in relation to sentence. I will then turn to the Constitutional issue. I will say at the outset that I have reviewed and considered the four binders of authorities provided to me by counsel but will reference only some of these decisions in my reasons. [ 4 ] One of the contested issues in this hearing is whether Mr. S. is affected by Fetal Alcohol Effect. Defence asserts that he is, or that it is likely that he is, and relies on this as a significant factor in the context of the s. 12 and s. 7 argument. Defence relies on a letter from Dr.

Moisey, a paediatrician in Smithers. Crown challenges the admissibility of this letter on the basis that no evidence was brought to establish Dr. Moisey as an expert qualified to make a diagnosis or provide an opinion as to FAE. In the course of setting out the facts I will rule on the admissibility of the Moisey letter. FACTS: 1. The Offence: [ 5 ] Mr. S. lives in Kispiox, B.C., a small First Nations community near Hazelton. At the time of the offence he had been in a relationship with BG for about 9 years.

For the first four years they were together he and BG had lived with her parents, two of her sisters and her two nieces in the parents’ home. The two girls, twins, were between the ages of approximately 4 - 8 when they lived together. He assisted with the caregiving for the girls when he lived at the house. When he and BG moved out they continued to live close by and saw the twins on a regular basis. [ 6 ] Late at night on an evening in September 2012 Mr. S. had been drinking with friends. He sent some text messages to one of the twins, AS who was then 14 years old.

One text asked her to let him into the residence, (where she continued to live with her sister and grandparents), and another to meet him at the local fire hall. She was asleep and did not receive the messages. Mr. S. entered the residence through a back or side door. He did not have permission to enter. In fact the grandfather was awake and watching television in the living room but S. did not let him know he was in the house. [ 7 ] He knew where AS’s bedroom was and went down the hall and into her room. She was asleep on her bed. He lay down beside her.

He hugged her from behind and then lifted her shirt and kissed her neck and back. He moved her legs apart. By this time she was awake. She sat up and told him to stop. He did so immediately and got up and left the room and went out of the house the same way he had come in. The next day he sent her a text message that he was sorry. [ 8 ] During the month or so prior to this incident Mr. S. had sent text messages to AS’s twin sister. The actual content of these messages was not described but in his post-conviction interview with Dr. Morgan, Mr. S. stated that he knew “they could get him into trouble”.

The Complainant: [ 9 ] AS was fourteen at the time of the offence. I found her to be a “young” fourteen when she gave evidence 9 months later. She was soft-spoken, and speaking about the incident was clearly upsetting to her. Her mother advised in a form of victim impact statement that since the incident AS no longer sleeps alone, and does not like to go out on her own. Since the offence both she and her twin sister are more distant with extended family members and don’t hug or kiss cousins or uncles. They have also started to wear shorts and tee shirts over their bathing suits.

AS does not wish to speak about the incident to her mother and has not wanted to speak with a counsellor. The Offender: [ 10 ] A pre-sentence report and a psychiatric assessment were prepared prior to the sentencing hearing to provide background information regarding Mr. S. and a risk assessment as to the likelihood that he might offend in a similar way in future. [ 11 ] Mr. S. is now 29 years of age and was 27 when the offence was committed. He is a Gitxsan person and a member of the Kispiox band. He grew up in Kispiox, a reserve community of about 600 people.

He is the youngest of five children, his four sisters being from 7 - 17 years older than him. When he was growing up both of his parents abused alcohol and there was a lot of yelling and violence. Mr. S. says that he was never abused by either parent however he did witness his father hit his mother on at least one occasion. An older sister advised that the father was unstable, beat all of the children at times and was threatening and physically violent towards the mother. The parents separated when Mr. S. was about 8 years of age.

[ 12 ] Mr. S. lived with his father initially but due to his Dad’s drinking and anger he eventually went to live with his Mom and her new partner. He got along with his step-father and was very close to his mother. She died in 2007 when he was 22 years old. [ 13 ] Mr. S. has been in a relationship with BG since he was 16 years old. They have one son who is 3 years old. They separated in 2012 after this offence occurred but have been trying to work things out and possibly get back together. Mr. S. has regular parenting time with the child and he and BG are able to work cooperatively in this area. [ 14 ] Mr.

S. completed Grade 12. He needed extra help with English throughout his schooling. He was never suspended or expelled and got on well with his teachers and fellow students. Since graduating he completed some vocational programs including a mining exploration course. He has worked in the mining and mining exploration field on and off for the last few years.

He has been working steadily since last January and I understand works in a camp setting where he is in camp for three weeks, out for a week and then back in camp again. [ 15 ] When he is not in camp he resides with his father and his father’s partner in Kispiox. He gets on well with his father who rarely drinks now, but less so with the partner who apparently drinks too much. He has two close friends who he grew up with and who he is able to talk to. They provide him with support and are both aware of this offence. [ 16 ] When Mr.

S. was 13 years old he was molested sexually by a friend of his parents who came into his bedroom and began to touch him. He hit the man and was able to get away. Apart from telling his mother it appears Mr. S. did not divulge this to anyone else until after the offence against AS. He spoke of it to Cst. Paul during his police interview and this is what led to his admission that he had touched AS in a sexual manner. It appears to have been about this same time, when he was in grade 8, that he began to drink alcohol. [ 17 ] Mr. S.’s alcohol intake increased over time and particularly after his mother died in 2007.

He is described as being ‘lost’ after his mother’s death. His first criminal offences stem from this period - an assault on his spouse during an altercation with a man with whom she had been “unfaithful”, and a breach of undertaking. Both of these offences involved alcohol. In 2009 he was convicted for a drinking and driving offence - again, alcohol related. [ 18 ] After his conviction and in his interviews for the pre-sentence report and the psychiatric assessment Mr. S. accepted responsibility for the offence. He demonstrated empathy for AS and the consequences to her ability to trust others.

He expressed shame for his actions and understood that his community was likely shocked and angered. He denied being sexually attracted to AS and did not know why he had acted as he did apart from the fact he had been drinking both on the date in question and earlier in the month when he had sent text messages to AS’s sister. He had no sense of how his own sexual victimization might be connected to his behaviour. He has difficulty communicating his emotions to anyone. [ 19 ] During the first nine months after the offence he contemplated suicide a few times.

Shortly after the offence he was hospitalized briefly after one such incident. Alcohol is a trigger for these thoughts. He has struggled with depression on and off. He has attended counselling sessions in December 2013 to January 2014 at which time he was called back to work. He is willing to attend counselling and or residential treatment to deal with substance abuse, anxiety, past trauma and also to take a sexual offender treatment program. [ 20 ] He has been required to abstain from alcohol completely since his arrest in October 2012. He did breach his undertaking in December 2012 by drinking.

Since then, he has been more successful and while he says he has had the occasional beer he has not been breached. He appears to be very motivated to stop drinking entirely. As of December 2013 he had not consumed any alcohol for two months. Gladue Factors: [ 21 ] Mr. S.’s mother attended a residential school as a “day” student where she was hit and prevented from speaking her own language. The community of Kispiox was significantly impacted by the residential school experience. Alcohol abuse, violence and sexual offending have been significant issues in the community.

The violence and alcohol abuse he experienced in his own family and the incident of sexual abuse he experienced as a 13 year old are examples of this. Mr. S. has no direct personal experience of racist attitudes towards himself. [ 22 ] While Mr. S. has been involved in the traditional feast system of the Gitxsan he has not attended one since his mother’s death in 2007. It is unclear how involved he is with his own House group. He said he would be reluctant to participate in a shame feast in relation to this offence because a feast is such a public forum.

While there is a restorative justice program within the Gitxsan community this program does not include sex offenders with an underage complainant. [ 23 ] There are counselling resources available through the Gitxsan Health Society in Hazelton and a Gitxsan run residential treatment facility for alcohol and trauma related issues in the nearby community of Kitwanga. Sex offender treatment programming is made available periodically in the community and a follow up Sex Offender Maintenance program is offered to help offenders maintain coping skills in the community. [ 24 ] Mr.

S. has reported as directed while under bail supervision since the fall of 2012. Other than the breach of undertaking for drinking in December 2012 he has abided by his undertaking. He also reported as directed and completed counselling as directed when he was previously on probation in 2007 - 2008. Psychiatric Assessment and Risk: [ 25 ] Dr. Morgan provided an opinion that Mr. S. does not suffer from any serious mental illness but that he does have psychological issues relating to trust and self-esteem and that he is in early remission for a severe alcohol use disorder.

[ 26 ] He described ‘risk’ as: “a hazard which is incompletely understood, the occurrence of which can only be forecast with uncertainty.” In other words, risk assessment is a very inexact art or science. [ 27 ] He used two risk assessment tools and on that basis considered that Mr. S.’s risk of sexual reoffending to be low to moderate - that risk being 6.6% in five years. The major factor elevating the risk to reoffend would be the disinhibiting effect of alcohol consumption. I also took from Dr. Morgan’s report that it would be important to get at any underlying attitudes which Mr.

S. might have condoning sexual deviance, through counselling and treatment. FAE: [ 28 ] Defence submits that there is a possibility that Mr. S. has fetal alcohol effects as a result of his mother drinking during the time she was pregnant with him. He argues that such a possibility is a significant mitigating factor on sentence and in the course of argument equated this possibility with the actual presence of fetal alcohol effects as a form of mental illness. [ 29 ] He relied on a letter from Dr. Moisey, a paediatrician in Smithers, which was written in January 2014. It appears from the letter that Dr.

Moisey interviewed Mr. S., though it is unclear when this interview took place or how long it took. It is also unclear whether Dr. Moisey had had any prior dealings with Mr. S. as a patient. [ 30 ] In his letter Dr. Moisey states:

a) there is no doubt that Mr. S. was exposed to alcohol in utero,

b) there is no doubt that Mr. S.’s father was exposing his sperm to alcohol at the time Mr. S. was conceived. No factual basis for these conclusions is set out. I presume it did not come from Mr. S. as he has stated to Dr. Morgan that he was unsure whether his mother had used drugs or alcohol when she was pregnant with him. [ 31 ] The letter further states:

c) at the time of the interview Mr. S. was consuming a significant amount of alcohol and was having black out episodes. This is directly at odds with the information provided in both the pre-sentence report and the psychiatric assessment to the effect that Mr. S. was making every effort to abstain from drinking alcohol and had not been drinking at all for the two months prior to December 2013.

d) Mr. S. has significant episodes of anxiety and can be diagnosed with anxiety syndrome. Anxiety syndrome is not explained and is not related to the assessment of Dr. Morgan, which does not refer to such a syndrome.

e) he feels strongly that the anxiety is a component of the alcohol exposure (presumably in utero),

f) the anxiety is likely the result of Mr. S. not being able to remember quickly where old information is stored resulting in him not recalling the right thing to do at the right time,

g) Mr. S. has some of the clinical signs that fit under the classification of an infant exposed to alcohol in utero. These are referred to as Mr. S. being unable, at times, to remember where old information is stored and to find the right thing to do in a given situation. [ 32 ] Dr. Moisey’s CV was attached to this letter and both have been marked together as Exhibit “A”. There is nothing in his CV which refers to him having any specific training or experience in diagnosing or treating fetal alcohol disorders or conditions. [ 33 ] While Crown had advised defence that they took issue with Dr.

Moisey’s expertise, no evidence was called on this issue - there was no voir dire - and defence did not seek a ruling that Dr. Moisey was qualified to give the opinions set out in his letter. [ 34 ] Defence argued that it is very expensive and difficult to obtain a diagnosis of fetal alcohol effect, (FAE), without a person being sent to the Asante Centre in Vancouver and this avenue is not available to Mr. S. through the Medical Services Plan or through private funding. Instead they wish to rely on Dr. Moisey’s letter, not as a diagnosis, but as basis for a finding that it is more likely than not that Mr.

S. has FAE and that this relates to his offending behaviour. [ 35 ] They also rely on a 2003 journal

article entitled “The Sentencing of Offenders with Fetal Alcohol Syndrome”, and the following court decisions relating to offenders who were sentenced on the basis that they had, or more than likely had FAE, or, at a minimum that their mothers had drunk alcohol while they were in utero: 1) R. v. L.E.M. , ( 2001) M.J. 62 (Man. Prov. Ct.) 2) R. v. R.B.M. (BCCA - February 6 and 21, 1990), 3) R. v. Harris

(2002) BCCA 152 [ 36 ] Defence agrees that it has not been established that Dr. Moisey has the qualifications to diagnose FAE. Notwithstanding this he argues that his letter can and should be considered on the question of whether Mr. S. could have FAE. In this sense the letter is relevant information and must be considered by the Court. He argues that Dr. Moisey’s letter provides a basis for the Court to assume both that Mr.

S. has FAE and that this was a factor in the offence relating to AS. [ 37 ] Defence argues that s. 726.1 of the Criminal Code requires that facts relevant to the determination of sentence be admitted and considered even if they are disputed and have not been established either on the balance of probabilities or beyond a reasonable doubt as the case may be.

[ 38 ] Defence also submits that if I am not prepared to admit and give some weight to Dr. Moisey’s letter then, as the sentencing judge I am obliged under s. 723(3) of the Code to require the production of evidence that would assist in determining the issue of whether Mr. S. does have FAE so as to assist in determining the appropriate sentence. [ 39 ]

Section 724 of the Code is very clear that any disputed fact which an accused person relies on as a mitigating factor on sentence must be established on the balance of probabilities. That is, it must be shown that the fact is more likely to exist than not.

Section 726.1 does not provide an exception whereby disputed facts must still be considered in the absence of such proof. [ 40 ] In this case the defence must establish on the balance of probabilities that Mr. S. has or is more likely than not to have FAE and that this condition relates to the commission of the offence or to his conduct in the community in a way which is relevant to the sentence that should be imposed in this case. It is not sufficient to show that it is possible that Mr. S. has FAE.

I cannot give any meaningful consideration to a possible mitigating factor or a possible aggravating factor. [ 41 ] In order for Dr. Moisey’s letter to be admissible on the issue of whether it is probable or likely that Mr. S. has FAE, it must be established that Dr. Moisey has the qualifications necessary to provide an informed and useful opinion on this point. The manifestations and impacts of FAE are not a matter of common experience where no special knowledge is required. His letter is not simply “some relevant evidence” as argued by the Defence. It is an opinion with respect to Mr.

S.: 1) having been exposed to alcohol in utero, 2) having anxiety syndrome, 3) having some of the clinical signs of being exposed to alcohol in utero, and 4) being unable at times to remember where old information is stored and being unable to find the right thing to do in a given situation. [ 42 ] While this is the sort of opinion which Crown and Defence often agree on at a sentencing hearing that is not the case here. Thus Dr. Moisey must be qualified as an expert.

His CV does not indicate any specific training or experience in the area of recognizing or treating either anxiety syndrome or the manifestations of FAE and no other evidence has been put forward to establish his expertise. As a consequence the letter is not admissible. [ 43 ] I find that defence has not established on the balance of probabilities that Mr.

S. has some form or manifestation of FAE which contributed to his offending behaviour or to the sentence which should be imposed in this case. [ 44 ] Defence has argued that I should exercise my discretion under s. 723 and require the production of evidence to make a determination as to whether Mr. S. has some form of FAE. I disagree. A presentence report has been provided on this file as has a lengthy and detailed psychiatric assessment. The pre-sentence report refers to Mr.

S.’s mother as having abused alcohol as a response to her husband’s violent behaviour but she is also described as the backbone of the family. There is no evidence that she was drinking during her pregnancy with Mr. S., no mention of this in the PSR and only Mr. S.’s comment that he was unsure whether this had occurred in the psychiatric assessment. [ 45 ] According to Dr. Morgan’s report Mr. S. reports that he attained his developmental milestones without delay and though he needed learning assistance with English he graduated from grade 12 and seems to have gotten on well socially.

He has successfully completed vocational training and found reasonably steady work in the mining exploration field. His prior involvement with the criminal justice system is limited to one assault for which he received a conditional discharge and a driving while over .08. [ 46 ] While Dr. Morgan found Mr. S. is in early remission for a severe alcohol use disorder he made no reference to any other cognitive or intellectual problems or dysfunctions. [ 47 ] I take defence counsel’s point that FAE may be a “hidden” condition in the sense that it does not manifest itself in obvious ways.

However, in the circumstances of this case the possibility that Mr. S.’s mother may have consumed alcohol during her pregnancy with him and if this was so then the possibility he has some effect which was not apparent to Dr. Morgan is not a basis to order a further inquiry into whether Mr. S. suffers from FAE. Aggravating and Mitigating Factors: [ 48 ] The following aggravating factors are present in this case:

a) the complainant was only 14 years of age at the time,

b) Mr. S. had a trust-like relationship with AS as her “uncle” and he was able to gain access to the home and her room based on his familiarity with the residence as he had lived there in the past,

c) the offence took place in the complainant`s bedroom and while she was sleeping - i.e. a place she would expect to feel safe and at a time when she was extremely vulnerable,

d) Mr. S. has a prior criminal record, though I consider this to be minimally aggravating as the two prior offences are not sexual in nature and do not involve children, and the one prior assault was considered mild enough to receive a conditional discharge, and

e) There was an element of planning involved in Mr. S.’s conduct, [ 49 ] The mitigating factors are: Mr. S. is a young man, he is working, and he has a young child and appears to take his parental responsibilities seriously. He has made some efforts to take counselling to try and assist with his drinking and to deal with his own

childhood trauma and presumably to gain some insight into his offending behaviour. He is willing to engage in counselling andtreatment. Apart from the one drinking breach in December 2012 he has committed no further offences while under bail supervisionover the last 18 months. He is genuinely remorseful for his actions. The Appropriate Sentence Irrespective of a Mandatory Minimum: [50] If I find that a term of actual jail of 90 days or greater is the appropriate sentence in this case, quite apart from the existence ofthe mandatory minimum, then the Constitutional questions raised do not need to be addressed.

R. v. Craig, 2013 BCSC 2098 ,2013 BCSC2098. [51] It is important that the sentence I impose on Mr. S. be one that gives primary consideration to the sentencing principles ofdenunciation and deterrence. This is because his offence involved a 14 year old child. Given the facts of this case, and particularly theelement of forethought in texting AS ahead of time and the surreptitious entry into her home and her bedroom, I find that thesesentencing principles can only be satisfied by a custodial sentence. I have considered Mr. S.’s aboriginal status.

I have considered hisexperience of alcoholism, violence and sexual molestation as a child which in my view flowed from the breakdown of family andcommunity values and traditions as a result of colonization, settlement and residential schools. Mr. S. and many others have been leftvery vulnerable as a consequence. However this does not minimise or excuse his behaviour toward AS. [52] While there are some counselling and treatment options within his community there is no program for restorative justice and theone restorative path open to him - the feast hall is not one he is prepared to take.

I see no community based programs which can fulfil ina traditional way the need to denounce this offence and provide deterrence. [53] Mr. S. continues to lack insight into why he acted as he did and while the risk that he will reoffend is low to moderate it remainsan important consideration. I find that he requires more than a non-custodial form of supervision (i.e. probation) to denounce and deterhis conduct.

I am satisfied, however that a custodial term of eight months which is served in the community would accomplish thesesentencing goals and would be consistent with the sentencing principles set out in s. 718.2(

e) as explained in the Supreme Court ofCanada’s decisions in R .v. Gladue , (SCC), [1999]1 SCR 688 and R. v. Ipeelee, 2012 SCC 13 , 2012 SCC13. These principles for sentencing aboriginal offenders must be considered not only in relation to whether a custodial sentence is necessary,but if so whether that sentence can be served as a conditional sentence or as some form of intermittent sentence. I am satisfied on thebasis of both Dr. Morgan’s report and Mr.

S.’s conduct since September 2012 while on supervision that it would not be contrary tocommunity safety for him to serve a jail term as a conditional sentence. [54] However, since s. 151 calls for a mandatory minimum sentence of 90 days a conditional sentence is not available. An eightmonth jail term served in a correctional facility, away from his work, family and community is quite different from a conditionalsentence - which in this case would have allowed for Mr. S. to continue to be employed - a very significant factor.

In thesecircumstances the defence application for a ruling that the minimum sentence is contrary to ss. 7 and 12 of the Charter is not academicand must be considered. The Constitutional Argument: [55] Defence argues that the minimum sentence of 90 days required by s. 151(

b) violates Mr. S.’s s. 7 rights in that:

a) it deprives a sentencing judge of the ability to determine a proportional sentence,

b) it precludes the application of s. 718.2(

e) and the “Gladue principles” to an aboriginal accused in that such an accused must go to jaileven if this is not otherwise required by the principles of sentencing,

c) it is arbitrary in the sense that there is no rational connection between the effect of the minimum sentence and its objectives,

d) it is overbroad and interferes with conduct not related to its objectives,

e) the effects of the minimum sentence on Mr. S. are so severe as to be grossly proportional to the objective of the sentence, [56] Defence also argues that s. 151(

b) breaches Mr. S.’s s. 12 right to be free from cruel and unusual treatment or punishment in thata minimum jail term of 90 days would be grossly disproportionate given his circumstances and the circumstances of this offence.

Section 7: [57] In R. v. Malmo-Levine ,2003 SCC 74 , [2003] 3 SCR 571 the Supreme Court held that there is no principle offundamental justice within s. 7 that would provide a remedy for a punishment that does not infringe s. 12. Notwithstanding this, andassuming there is a basis for a separate arbitrariness or overbreadth analysis I will first address the defence submissions under s. 7 asthese were identified as their primary arguments. [58] Defence relies on the Supreme Court of Canada decisions in: R. v. Ipeelee, 2012 SCC 13 , 2012SCC13 Canada (Attorney General) v.

Bedford, 2013 SCC 72 , 2013 SCC72 Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 , [2011] 3SCR 134 for the propositions that:

1) the s. 7 principles of fundamental justice include proportionality in sentencing, (Ipeelee), and arbitrariness, overbreadth and grossdisproportionality, (Bedford). 2) arbitrariness refers to the situation where there is no rational connection between the effect of the law on the individual and the objectof the law, (Bedford), 3) overbreadth exists when a law goes too far and interferes with conduct that has no connection to the objective of the law, (Bedford) 4) gross disproportionality exists when the effect of a law is grossly disproportional to its objective. (Bedford) [59] Defence also relied on an academic article, “Arbitrary Disproportionality: A new Charter Standard for measuring the Constitutionality of Mandatory Minimum Sentences”, (2012) 57 Supreme Court Law Review (2nd) 174 in which its author, AllanManson, argues that the constitutionality of minimum sentences should be determined using an s. 7 framework of “arbitrarydisproportionality”.

Within this framework the relevant question is whether the sentence in question “creates a class of people who willbe subjected to a sentence that cannot be justified by any sentencing principle or objective”. Thus one must look at the offence at itslowest level of culpability and at the most sympathetic offender. [60] I will deal first with the issues of arbitrariness and overbreadth. Since the gross disproportionality standard in s. 7 is the same asthe standard to be considered under s. 12 and I will deal with that issue in the context of the s. 12 analysis (R. v. Malmo-Levine, supra).

Arbitrariness: [61] The first question to be asked is what the legislative purpose of the minimum sentence in s. 151 is. I think it is clear that inenacting this

section Parliament was seeking to acknowledge the serious nature of any sexual offence involving a child and to express acollective condemnation of this type of offence by creating a minimum sentence that focuses on denunciation and deterrence. I do notunderstand the Defence to be arguing that this is not a valid legislative objective but rather that the goals of denunciation and deterrenceare not rationally connected to a minimum jail term. [62] I cannot agree with this submission.

While there may well be much academic debate as to whether general deterrence is aneffective sentencing goal it remains a sentencing principle which courts are obliged to consider and I am obliged to assume it has someeffect (R. v. Johnson (1996), (BC CA), 112 CCC (3d) 225 (BCCA)). The same is true of denunciation. These arevalid sentencing principles and as such are logically linked to the imposition of jail time, including the imposition of minimum jailsentences as a means to bring home the seriousness with which society views certain offences.

Overbreadth: [63] Defence argues that s. 151 is overbroad in that it mandates a 90 day minimum jail term for anyone found guilty of a sexualinterference or touching of a child even if a shorter jail term or a conditional sentence would otherwise be considered proportional andappropriate. However, the “overbreadth” concern does not relate to whether absent a minimum sentence a CSO or shorter jail termwould be proportional but whether the minimum sentence captures some conduct which has no connection to the law’s objectives. [64] An example of overbreadth is found in Canada (Attorney General) v. Bedford (supra).

In that case the purpose of theprohibition against living on the avails of prostitution was to target pimps and the “parasitic, exploitive conduct in which they engage”. The prohibition also captured others including drivers and bodyguards who could increase the safety of prostitutes and others involvedas receptionist or book keepers. For this reason it was found to be overbroad and to violate s. 7. [65] In this case the minimum sentence can only be applied to someone who has been found guilty of touching a person under theage of 16 years for a sexual purpose.

The objectives of deterrence and denunciation apply - to a greater or lesser extent - to anyone foundguilty of such an offence, even the most sympathetic first time offender. It simply cannot be said that there is no connection between thelaw’s objectives and the conduct it captures.

The concern that the application of those objectives might result in a sentence which isgrossly disproportionate is a separate issue which falls to be determined under s. 12. [66] Woven through the Defence argument on arbitrariness is their argument that the s. 151 minimum sentence is disconnected fromthe sentencing principles set out in s. 718.2(

e) and elaborated in R. v. Gladue (supra), and R. v. Ipeelee (supra), and is thereforeirrational and arbitrary. As I understand this point it is that the principle of proportionality in sentencing is a principle of fundamentaljustice and in the case of an aboriginal offender this requires a consideration of the systemic and background factors which have broughta particular offender before the Court so that it can be determined whether a sanction other than imprisonment is reasonable andconsistent with the principles of sentencing in the circumstances.

A minimum jail term flies in the face of these requirements and cannotbe reconciled with them in any rational way. [67] There is no doubt that proportionality in sentencing is a principle of fundamental justice (R.v. Ipeelee, R.v. Anderson, 2014SCC 41 , [2014] SCJ No. 41). In s. 718.2 of the Code Parliament has set out certain factors or principles which must beconsidered in determining a proportional sentence.

However this does not mean that Parliament can have no further say in what aproportional sentence is or what its starting point must be - as long as it is not otherwise arbitrary or overbroad in the manner alreadydiscussed and does not run afoul of s. 12. [68] The provisions of s. 718.2 as interpreted in R. v. Ipeelee require a sentencing judge to consider the unique circumstances ofaboriginal offenders so as to craft a sentence which is proportional to the degree of responsibility and moral blameworthiness of theoffender and the gravity of the offence.

However these considerations must be considered within the limits of existing statutoryminimum and maximum penalties. (R. v. Knockwood, 2012 ONSC 2238 , 2012 ONSC2238). As the SCC has recently pointedout in R. v. Anderson,[2014] supra at para 25:

…..It is the judge’s responsibility to impose sentence; likewise it is the judge’s responsibility, within the applicable legalparameters, to craft a proportionate sentence. If a mandatory minimum regime requires a judge to impose a disproportionate sentence,the regime should be challenged. (emphasis added). [69] The fact that a judge must consider s. 718.2(

e) from an inflationary floor of 90 days does not in and of itself breach the principleof proportionality in sentencing. It does so only if the resulting sentence is disproportionate. Given the jurisprudence from the SupremeCourt of Canada which I will refer to in the context of the s. 12 analysis I interpret this as being a reference to “gross disproportionality”. [70] Finally I turn to Professor Manson’s argument that s. 7 provides a more useful platform to examine the constitutionality ofmandatory minimum sentences than the “grossly disproportional” approach of s. 12.

He suggests that the legislative provision beexamined to determine if it carves out a class of people for whom the sentence cannot be justified on principled grounds - and if so thenthe provision should be found to be arbitrary. At p. 201 of “Arbitrary Disproportionality: A new Charter Standard for Measuring the Constitutionality of Mandatory Minimum Sentences”, (2012) 57 Supreme Court Law Review(2nd) 174 he writes: For every offence it is inevitable that there will be a young first offender. It is inevitable that an offence will be committed at the lowestrung of culpability.

The issue is whether, with this class in mind, can the mandatory sentence be justified by reference to acceptedsentencing principles and penological objectives, as found in fact, and not by speculative theoretical assertion. [71] This approach would require the defence to establish on the balance of probabilities that the principles of denunciation anddeterrence would not justify a 90 day jail term, possibly served intermittently, for young first offenders who have committed a very lowlevel sexual touching of a child.

I agree with Professor Manson that it would be necessary to hear expert testimony about the “scope andrelevance of various sentencing and penological objectives”. The very welcome result being that a judge could engage in a trulyevidence-based sentencing process. [72] No such testimony has been offered in this case, and quite apart from that, as a Provincial Court Judge I am properly constrainedby the principle of stare decisis, and accordingly am bound by the Supreme Court of Canada’s ruling in R. v.

Malmo-Levine (supra) tothe effect that a constitutional challenge to a punishment imposed by Parliament falls to be decided under s. 12. Thus, while I haveconsidered and rejected the s. 7 arguments of Defence, I am in fact required to follow the direction of the Supreme Court of Canada anddetermine the constitutionality of the minimum sentence in this case within the framework of an s. 12 analysis.

Section 12: [73] S. 12 of the Charter provides that, “Everyone has the right not to be subjected to cruel and unusual treatment or punishment”. The test for whether a sentence is cruel and unusual is whether it is grossly disproportionate. This involves more than being excessivebut being so excessive as to outrage standards of decency such that the community would find the punishment to be abhorrent andintolerable. (R. v. Ferguson, 2008 SCC 6.) A mandatory minimum sentence is not in and of itself cruel and unusual. (R. v.

Goltz, (SCC), [1991]3 SCR 485.) [74] The question of whether a sentence is grossly disproportionate involves a two stage inquiry to determine first, whether asentence is grossly disproportionate in the individual circumstances of the offender before the court. If it is not then the next step is toconsider whether the sentence is grossly disproportionate in the circumstances of a “reasonable hypothetical” to which it might apply. (R. v.

Morrisey, 2000 SCC 39 , [2000] 2 SCR90.) In this case defence advised they are not advancing any “reasonablehypothetical” so I will deal only with the individual or “particularized” inquiry. [75] The factors which must be examined in the gross disproportionality analysis are:

a) the gravity of the offence,

b) the personal circumstances of the offender,

c) the particular circumstances of the offence,

d) the actual effect of the punishment on the offender

e) the penological goals and sentencing principles reflected in the challenged minimum,

f) the existence of valid alternatives to the punishment, and

g) a comparison of punishments imposed for other similar crimes None of these factors is necessarily determinative. (R. v. Morrisey, supra). [76] Defence has argued, based primarily on its submission that it is possible Mr. S. has FAE, and this possibility is, “like any othermental illness” a significant mitigating factor, that a minimum jail term of 90 days is grossly disproportional.

This is because in thecircumstances of a person who is mentally ill there is reduced moral culpability and thus general deterrence and denunciation should begiven little weight. [77] I have found, however, that the Defence has not established on the balance of probabilities that Mr. S. suffers or is likely tosuffer from either FAE or any other mental illness, so any concerns relating to a mentally ill offender are not relevant to the grossdisproportionality analysis.

[78] The offence of touching a child for a sexual purpose is a serious offence. As the Crown has pointed out it requires a specificintent, it may be prosecuted by indictment as well as summarily and can draw a jail term of up to 10 years. The following statementregarding sexual offences against children by Cameron J.A. of the Ontario Court of Appeal was adopted with approval by L’Heureux-Dube J in R. v.

L.F.W.,2000 SCC 6 , [2000] 1 SCR 132: I do start from the premise that sexual assault of a child is a crime that is abhorrent to Canadian society and society’scondemnation of those who commit such offences must be communicated in the clearest terms. As to moral blameworthiness,the use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst intentions. I have set out the circumstances of the offence in this case and the personal circumstances of Mr.

S., including the aggravating andmitigating factors and the “Gladue” considerations earlier in these reasons. Neither the circumstances of the offence nor Mr. S.’spersonal situation make a 90 day jail term a grossly disproportionate sentence, nor even a disproportionate sentence if the sentence can beserved intermittently. [79] The actual effect of a 90 day jail term on Mr. S. would no doubt be difficult. He has never spent time in jail.

There is nothingabout him or his situation however which would cause a jail term of this length to have an especially harsh or dire impact - particularlysince it could be served intermittently which should allow him to keep his job. [80] The penological goals and sentencing principles of the minimum jail term in question are denunciation and deterrence - send anoffender to jail for at least 90 days in order to bring home the message to him and others that sexual offence involving children are takenvery seriously by society.

These are valid goals and principles. [81] I agree with Defence that in the circumstances of this case a conditional jail term would be a valid alternative to a mandatoryterm of actual jail. However, that is not sufficient to make a jail term of 3 months grossly disproportionate. This is particularly so giventhat a conditional sentence of 8 months with no remission time would result in a much longer time period when Mr.

S. would be confinedto his residence and living with the very real possibility of being sent to jail if he breached a condition. [82] Finally a comparison of punishments imposed for other similar crimes in Canada reveals that sexual offences involving childrenwill generally draw a jail term, whether the offender is aboriginal or not - a jail term which is generally not conditional. (R. v. DLW,[2014] BCSC43; R. v. B(TM)

(2013) ONSC4019). [83] In light of all of these factors a 90 day jail term would not constitute a punishment which is “so excessive as to outrage standardsof decency” in this case. It is not grossly disproportionate and does not create a breach of Mr. S.’s s. 12 Charter right. The Sentence to be Imposed: [84] While I have determined that absent the mandatory minimum sentence in s. 151(

b) a conditional sentence order of 8 monthswould be a proportional sentence in this case - that sentence is not available. If I am required to impose a term of “real jail” of at least 90days, then I must return to s. 718.2(

e) and consider, in light of Mr. S.’s background and circumstances, what length of actual deprivationof liberty would suffice to denounce and deter his conduct. [85] In this case Mr. S. is working in camp and returns home every few weeks for about a week. When he is not working he stays athis father’s home in Kispiox. I think it is very important that Mr.

S. be able to maintain his employment as I consider this to be asignificant lynch pin in his current recovery from alcohol abuse and his ability to benefit from any counselling process for his owntrauma and for sexual offenders. [86] If he serves a 90 day sentence intermittently he will actually be spending either part of each week in jail, (or part of each monthin jail if he is working out at a camp), over a period from about 5 months up to 8 months.

This is assuming he is granted all of hisremission time and serves three days per week or one week per month. [87] Given the mitigating factors in this case, and in light of the Gladue factors already mentioned I find that a jail term of 90 daysfollowed by three years of probation will satisfy the sentencing principles of denunciation and deterrence as well as the goals ofrehabilitation and protection of the public.