R. v. Gumban Date:, 2017 BCPC 226

Citation: R. v. Gumban Date: 20170802 2017 BCPC 226 File No: 239987-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. JOEL AGUIRRE GUMBAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. WERIER Counsel for the Crown: L. Viszolyi and M. Myhre Counsel for the Defendant: D. Karp and M. Fingas Place of Hearing: Vancouver , B.C. Date of Hearing: May 4 & 5, 2017 Date of Judgment: August 2, 2017

INTRODUCTION [ 1 ] In November 2016, Joel Aguirre Gumban pled guilty to committing the offence of invitation to sexual touching of a person under the age of 16, contrary to s. 152 (

b) of the Criminal Code . The offence occurred on October 1, 2014. As the Crown has proceeded summarily, the maximum sentence that he can receive for this offence, given the law that was in effect at the time of the offence, is 18 months jail. On June 18, 2015, the Tougher Penalties for Child Predators Act amended s. 152(

b) to make the maximum sentence for this offence 2 years less a day, if proceeded with summarily. Between November 1, 2005, and August 8, 2012, the mandatory minimum sentence for a s. 152 (

b) summary conviction offence was 14 days. When this offence was committed, the mandatory minimum sentence for a s. 152 (

b) offence proceeded with summarily was 90 days jail. This mandatory minimum sentence was not increased with the proclamation of the Tougher Penalties for Child Predators Act and currently remains a 90 day jail sentence. [ 2 ] From November 1, 2005, until August 8, 2012, the mandatory minimum sentence for a s. 152 (

a) indictable offence was 45 days. On October 1, 2014, the mandatory minimum sentence for a s. 152 (

a) indictable offence was one year of jail and the maximum jail sentence was 10 years. This maximum was increased to 14 years jail with the proclamation of the Tougher Penalties for Child Predators Act . [ 3 ] Mr. Gumban challenges the constitutional validity of the s. 152 (

b) mandatory minimum 90 day sentence for this

summary conviction offence on the basis that it violates his right, pursuant to s. 12 of the Charter , to be free from cruel and unusual punishment. He submits that this breach is not saved by s. 1 of the Charter . In

summary, he argues that the 90 day mandatory minimum jail sentence is grossly disproportionate to what an appropriate sentence should be in light of his personal circumstances, the gravity of the offence and the fundamental principles of sentencing enumerated in the Criminal Code . Defence has submitted, (given the limits of my jurisdiction as prescribed by the Supreme Court of Canada in R. v. Lloyd, 2016 SCC 13 ), that if I find that the law is unconstitutional, that I ought to sentence Mr. Gumban without consideration of the mandatory minimum sentence.

THE OFFENCE [ 4 ] An Agreed Statement of Facts was filed and marked as Exhibit 1 in the sentencing proceedings. [ 5 ] On October 1, 2014, Mr. Gumban was 42 years old. He worked as a custodian for the Vancouver School Board, assigned to David Thompson Secondary School in Vancouver. Mr. Gumban had been working at the school for less than a week on September 30, 2014, when he approached the 14 year old male victim V.T. who, with several other students, was doing homework after class in the school cafeteria. Mr. Gumban approached the students and made small talk. He showed the students pictures of his family.

He then asked V.T. if he was Filipino and spoke to V.T. in their shared dialect. He gave V.T. his phone number and told V.T. to call him. Mr. Gumban left the group of students, but returned later and told V.T. that he liked him and asked him where he lived. [ 6 ] On October 1, 2014, V.T. and his two 15 year old friends were once again studying after class at a table in the school cafeteria. Mr. Gumban approached their table, and speaking to V.T. in their shared dialect asked V.T. why he had not called him. V.T. replied that he was busy with homework. Mr.

Gumban said “don’t you want to be connected with me?” and asked V.T. if he was “scared” of him. Then Mr. Gumban showed V.T. and his friend P.A. pictures on his phone including a picture of a child who he said was his daughter. He also showed them a picture of a naked male, perhaps in his 20’s, with an erect penis. Mr. Gumban then asked them if “they knew this guy” and told them “that he had a lot of this”, and asked if they “would like to see it”. Mr. Gumban then left the table. [ 7 ] A short time later, Mr. Gumban called V.T. over to a corner of the cafeteria on the pretext of asking him for a pen.

V.T. walked over to Mr. Gumban and gave him the pen. Mr. Gumban then asked V.T. if he’d had sex with anyone and V.T. replied “No”. Mr. Gumban asked V.T. “Do you want to touch my penis?” At the time that he asked this question of V.T., Mr. Gumban had his right hand on top of his own crotch. Mr. Gumban then asked V.T. “Do you want to eat it”; “Can you go to the washroom??” V.T. answered “No” to these questions. Mr.

Gumban then replied “Don’t tell your friends or family” and V.T. replied “OK” and then V.T. said “Give me back my pen”. [ 8 ] V.T. returned to his friends and felt panicky, was shaking and his friends were aware that he was upset. V.T. told his friends that he needed to leave. Once they had left the school V.T. started crying and told his friends what had happened. When he got home, V.T. told his mother and then his father about the events with Mr. Gumban and the next day the incident was reported to the school.

CROWN SENTENCING POSITION [ 9 ] The Crown is seeking a 90 day intermittent jail sentence followed by 12 - 18 months’ probation. They are also seeking a DNA order pursuant to s. 487.051(1), as this is a primary designated offence. They are seeking a 10 year SOIRA order pursuant to ss. 490.011(

a) and 490.013(2)(a), as well as payment of the s. 737 Victim Fine Surcharge. DEFENCE SENTENCING POSITION [ 10 ] Defence is seeking a two to three year suspended sentence, which would include a curfew for the first 6 months, as well as 60 hours of community work service. He acknowledges the compulsory nature of the DNA, SOIRA and Victim Fine Surcharge orders. PRE-SENTENCE REPORT AND PSYCHIATRIC REPORT [ 11 ] To assist me in considering the appropriate sentence I have received and reviewed a pre-sentence report with a psychiatric component. Some of the details about Mr.

Gumban contained in the pre-sentence report and psychiatric report were also confirmed in written submissions filed by Defence counsel: • Mr. Gumban was born in 1972 in the Philippines, and is now 45 years old. He was raised in a devout Catholic family;

• he had what he described as a respectful non-abusive upbringing with a shared sense of community values; • due to the conservative household that he grew up in, he was unable to be open about himself with his family and was unable todiscuss his sexual attraction to both men and women; • Mr. Gumban identifies his sexual orientation as bi-sexual although he advises that he is more attracted to men than to women. Heis conflicted about his sexual attraction to men because of his religious beliefs. He identifies as Christian, and actively attends church; • Mr.

Gumban immigrated to Canada from the Philippines in 2009 and married Grace Gumban. He is a Canadian citizen. He hastwo daughters aged 5 and 3. As the Ministry of Children and Family Services have been involved with his family because of thesecriminal charges, he is only allowed to see his children in the presence of a responsible adult and is not allowed to spend overnight in thefamily home; • Mr. Gumban denies any attraction to young children, including his own children; • Mr.

Gumban is a high school graduate and has a Bachelor of Science in Agriculture from a University in the Philippines; • until the offence date Mr. Gumban was working as a building service worker both for the Vancouver School Board and the City ofVancouver. The criminal charges have affected his ability to work due to his bail restrictions; • Mr. Gumban has no substance abuse or mental health issues; • Mr. Gumban has no criminal record; • Mr. Gumban reports that he has been seeing a counsellor since December 2016, and he is open to further counselling; • In April 2014 Mr.

Gumban reports that he started to use a phone app called Tango to connect with men for sexual purposes. Mr. Gumban was assessed by Dr. Kathy Lewis (registered psychologist with Forensic Psychiatric Services) as being a low risk for futuresexual offending. She concluded that Mr. Gumban would benefit from participating in sexual offender treatment with a specific focus ondeveloping appropriate sexual boundaries. ISSUES [12] 1. Does the minimum 90 day sentence mandated by s. 152(

b) of the Criminal Code violate s. 12 of the Charter by constitutingcruel and unusual punishment? (If I find that the mandatory minimum sentence does violate the Charter, Crown has reserved the right toargue that it is justified pursuant to s. 1 of the Charter. I heard no argument on this issue.) [13] 2. If I do not find that the s. 152(b) 90 day mandatory minimum sentence violates s. 12 of the Charter, then what should theappropriate sentence be? TEST FOR INFRINGEMENT OF S. 12 OF THE CHARTER [14]

Section 12 of the Charter provides that everyone has the right not to be subjected to “cruel and unusual punishment”. The testfor whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is grossly disproportionate (R. v.Smith, (SCC), [1987] 1 S.C.R. 1045). This test has been described as being stringent and demanding. It is only on rareand unique occasions that a court will find a sentence so grossly disproportionate that it violates s. 12 of the Charter, as otherwise itwould tend to trivialize the Charter (Steele v.

Mountain Institution, (SCC), [1990] 2 S.C.R. 1385). [15] The Supreme Court of Canada has confirmed that “cruel and unusual punishment” is a high bar, R. v. Nur, [2015] S.C.R 15,which requires that the punishment be more than merely excessive (R. v Smith). In order to find that the 90 day mandatory minimumsentence constitutes cruel and unusual punishment, I must conclude that the sentence is so excessive that it would outrage standards ofdecency and be so disproportionate that Canadians would find the punishment “abhorrent or intolerable”, (R. v.

Ferguson, 2008 SCC 6,at para. 14) or would “shock the conscience of Canadians” (R. v. Lloyd, 2016 SCC 13, at para. 33). [16] A two stage test is to be employed to evaluate the constitutionality of s. 152(

b) under s. 12. The first stage is to view theprovision in question from the perspective of Mr. Gumban on the facts before the Court. This is often referred to as a particularizedinquiry. To be successful Mr. Gumban must satisfy me, on a balance of probabilities, that the 90 day mandatory minimum sentencewould be “grossly disproportionate” to the appropriate sentence, having regard to all the relevant contextual factors. This includes anexamination of the gravity of the offence, the circumstances of the offence and the personal circumstances of Mr. Gumban (R. v.

Smith,p. 1073). [17] I must also consider the actual effect of the sentence on Mr. Gumban, the penological goals and principles of sentencingincluding the existence of valid alternatives to the punishment imposed, and a comparison of punishment for other similar crimes (R. v.Goltz, (SCC), [1991] 3 S.C.R. 485; R. v. Morrisey, 2000 SCC 39 , [2000] 2 S.C.R. 90; R. v. Stewart, 2010BCCA 153). Not all factors are necessarily relevant in every case, and the absence or presence of a particular factor is not necessarilydeterminative of the question of gross disproportionality (Morrisey; Stewart).

I must also consider and defer to the valid legislativeobjectives underlying the criminal law responsibilities of Parliament (R. v. Latimer, 2001 SCC 1). [18] If I do not find that the mandatory minimum sentence is grossly disproportionate if imposed on Mr. Gumban, then I mayembark on the second stage of the inquiry and consider whether the sentence would result in a grossly disproportionate sentence for areasonably foreseeable hypothetical offender (Lloyd).

However, the reasonable hypothetical must be one that may reasonably beexpected to arise, and not one that is far-fetched or marginally imaginable or remote or extreme (Goltz; Latimer; Morrisey). The widerthe range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the minimum will extend to

hypothetical offenders for whom a mandatory minimum sentence may be found to be grossly disproportionate ( Lloyd) . While the reasonable hypothetical may take into account hypothetical personal characteristics of an offender, it is necessary for the inquiry to be grounded in common sense and experience and cannot be used to construct the most innocent or sympathetic case imaginable ( Nur) . It includes consideration of hypothetical circumstances that are foreseeably captured by the least morally culpable conduct caught by the provision ( Nur) .

It has been suggested that almost any mandatory minimum sentence could be argued to violate s. 12 with the right lawyerly ingenuity. Thus the focus must be on whether the sentence would be grossly disproportionate in truly reasonably foreseeable cases ( Nur). CROWN SUBMISSION ON SENTENCING GENERALLY [ 19 ] In seeking a sentence of 90 days intermittent jail for Mr. Gumban, who is a first time offender, Crown has emphasized multiple aggravating factors: • pursuant to s. 718.2(a)(iii) Mr.

Gumban was employed and working for the Vancouver School Board at the time of the offence, and was therefore in a position of trust or authority; • the offence was premeditated. It began with grooming on the first meeting, followed by the invitation the following day.

Prior to the invitation, he showed V.T. a pornographic image of a young male with an erect penis; • pursuant to s. 718.2(a)(ii.1) this offence includes a statutory aggravating factor because V.T. was under the age of 18, and in fact he was only 14 at the time of the offence; • V.T. has provided a verbal victim impact statement through Crown counsel which indicates that as a result of the offence he sometimes feels paranoid and insecure, and has experienced sleep disturbances, anxiety and depression. [ 20 ] Crown also acknowledges that there are multiple mitigating factors that I must consider in my deliberations: • the guilty plea allowed the young witnesses to avoid having to testify and also saved court time; • Mr.

Gumban has no criminal record; • Mr. Gumban has expressed his remorse and willingness to receive help and to attend counselling; • Mr. Gumban has abided by strict bail conditions for over 2 years without any breaches. [ 21 ] In arguing that a 90 day intermittent jail sentence would be appropriate, Crown has acknowledged that the cases that they have relied upon are in actuality of relatively limited assistance, as most reported decisions involve offenders who have committed multiple sexually related offences rather than a single count of invitation to sexual touching of a minor.

In support of their submission that a 90 day intermittent jail sentence would be appropriate they have relied on the cases of R. v. McCall, 2011 BCPC 143 ; R. v. Kanigan, 2014 SKQB 147 ; R. v. M.J.A.H., 2016 ONSC 249 .

I have found that the cases provided by the Crown are of some assistance in providing an understanding of the broad range of sentences that have been imposed for sexual offences involving minors, but they are otherwise of limited assistance given their obvious factual differences and the need for this sentencing to be an individualized process. [ 22 ] In submitting that a 90 day intermittent jail sentence would be appropriate and that a suspended sentence as proposed by defence would be inappropriate, Crown has reminded me that s. 718.01 of the Criminal Code provides that when sentencing an offender for an offence that involves the abuse of a person under the age of 18, that I must give primary consideration to the objectives of deterrence and denunciation.

They point out that by including this requirement in s. 718.01, that Parliament has incorporated and reflected the societal values that sexual interaction between adults and children deserves a high degree of condemnation especially because this offence took place in a high school, which should ordinarily have been a place of safety for V.T. Mr. Gumban was a man in his 40’s at the time, had obtained a job working in a high school which facilitated his regular contact with teenaged boys, and Crown points to the fact that Mr. Gumban used this access to proposition 14 year old V.T.

The principle of general deterrence is equally important, they argue, as it is essential to deter like-minded individuals, even those without criminal records, from committing this type of an offence where an adult deliberately sexually preys upon an innocent and vulnerable young person. Crown does acknowledge that rehabilitation is also an important sentencing principle for Mr. Gumban who is a first time offender, but points out that statutorily this cannot be my primary consideration on sentencing. [ 23 ] While acknowledging that a jail sentence may be difficult for Mr.

Gumban, Crown suggests that the intermittent sentence would meet the primary sentencing objectives of denunciation and deterrence while still allowing Mr. Gumban to maintain his employment and to have continued contact with his family. DEFENCE SUBMISSION ON SENTENCING GENERALLY [ 24 ] While acknowledging the existence of the statutory aggravating factors outlined by Crown, Defence counsel points out that Mr. Gumban has taken full responsibility for his actions, but that he was unaware of the seriousness of his actions at the time. While conceding that because this offence took place in the school where Mr.

Gumban worked, that he was in a position of trust, Defence argues that as Mr. Gumban was employed as a school custodian and not a teacher or a counsellor, that I ought to consider that this offence involves a more limited position of trust. He also emphasized that there was no prolonged grooming, as there was only one sexual touching invitation. He notes that when the invitation was turned down, Mr. Gumban was not persistent. [ 25 ] Defence argues that Mr.

Gumban has acknowledged his need for assistance, and that he understands that he would benefit from ongoing counselling to help him to ensure that he observes appropriate sexual boundaries. The best opportunity to access this kind of counselling, Defence argues, would be by allowing him to remain in the community. He emphasizes that Mr. Gumban is willing to attend whatever counselling or treatment is deemed appropriate.

[ 26 ] As the psychological assessment determined that Mr. Gumban is at a low risk to reoffend, Defence argues that he is an excellent candidate for community supervision. He also emphasizes that Mr. Gumban has already received significant consequences for this offence as he has not been allowed to live in the family home and been required to abide by strict bail conditions for over 2 years.

He also suffered immediate consequences by losing his employment with the School Board. [ 27 ] Defence emphasized the following mitigating factors, which are similar to those conceded by the Crown: • the guilty plea which has spared the need for the young victims to testify; • the lack of a criminal record; • Mr. Gumban has otherwise been a hardworking member of society; • Mr. Gumban has expressed remorse and insight; • Mr. Gumban is willing to engage in counselling; • Mr.

Gumban has been assessed as a low risk to reoffend; • the brief nature of the offence. [ 28 ] While acknowledging that denunciation and deterrence are statutorily emphasized sentencing principles, Defence argues that for a first time offender like Mr. Gumban, restraint is also an important sentencing principle. [ 29 ] Defence counsel also focused on Mr. Gumban’s prospects for rehabilitation. He submitted that in appropriate circumstances suspended sentences have been imposed for serious offences.

Emphasizing the parity principle, Defence relied on a number of cases from British Columbia to support his position that a lengthy suspended sentence with probation would be appropriate ( R. v. Careen, [2012] BCSC 918; R. v. F.O.R., [2016] BCPC 223; R. v. Maxmenko, [2015] BCSC 2224; R. v. Khan, 2013 ONCJ 267 ; R. v. R.C. , [2016] ONCJ 605). Defence has argued that the accused in those cases committed offences in much more egregious circumstances and as a consequence that a suspended sentence would be an appropriate and available sanction for a first time offender such as Mr.

Gumban. [ 30 ] While I find that the cases relied on by Defence counsel are also of some assistance in informing me of what other Judges in British Columbia and elsewhere have done when sentencing adult males who have committed sexual offences involving victims under the age of 16, all are distinguishable on their facts and unique to the particular offences and offenders. [ 31 ] Neither counsel specifically provided me with a clear fixed range of sentences imposed for the commission of a single s. 152 (

b) offence. The cases provided by Crown and Defence exemplify that there have been a wide range of sentences imposed for sexual offences involving minors. DEFENCE ARGUMENT THAT THE MANDATORY MINIMUM SENTENCE REQUIRED BY S. 152(

b) BREACHES S. 12 OF THE CHARTER [ 32 ] In the particularized inquiry, I am to assess the challenged 90 day mandatory minimum sentence from the perspective of Mr. Gumban. I must balance the gravity of the offence with the particular circumstances of the offence and the personal characteristics of Mr. Gumban. I must also consider the actual effect of the punishment on Mr. Gumban. This analysis takes place in order for me to make a determination of what the appropriate sentence should be, absent a mandatory minimum sentence ( R. v. Smith ; R. v Goltz ).

As reaffirmed in Nur and Lloyd , once a fit or proportionate sentence is determined, the inquiry then focuses on whether the mandatory minimum sentence in these particular circumstances would be grossly disproportionate to the offence and its circumstances. [ 33 ] Defence argues that it is not necessary for Mr. Gumban to be sentenced to jail in order to meet the sentencing objectives. Therefore, the mandatory minimum sentence of 90 days jail is clearly grossly disproportionate and constitutes a breach of s. 12 of the Charter, as to send him to jail for this duration would constitute cruel and unusual punishment.

He argues that even if I find that a jail sentence is appropriate or necessary, it is clear based on a review of the case law, that the sentence I ought to impose should be significantly less than 90 days and that therefore the prescribed mandatory minimum sentence would be a grossly disproportionate sentence. [ 34 ] Defence relies on the recent decisions in Nur; Lloyd; R. v. Dickey, [2016] BCCA 177; R. v.

E.R.D.R., 2016 BCSC 684 (breach ruling), 2016 BCSC 1759 (s. 1 ruling), 2016 BCSC 1758 (Reasons for Sentence) as examples where courts have found that mandatory minimum sentences have violated s. 12 of the Charter . Defence has also relied on recent successful s. 12 challenges to mandatory minimum sentences for sexual interference ( R. v. S.J.P., [2016] NSPC 50; R. v. M.L., [2016] ONSC 7082) and argues that the facts in those cases were much more egregious than Mr. Gumban’s offending conduct which would therefore make a jail sentence for Mr.

Gumban clearly grossly disproportionate. [ 35 ] Defence also relies on cases where offenders have been sentenced for sexual offences in British Columbia ( Careen; F.O.R.; Maxmenko; Khan; R.C. ) to support his argument. The facts in those cases were reviewed by him during his submissions along with the analysis expressed by the sentencing judges. He argues that it is clear, based on a critical review of these cases, that a 90 day jail sentence for Mr. Gumban would be grossly disproportionate, as a jail sentence of this duration does not align with previous BC Court decisions.

In particular Defence points to Careen and Khan as examples of cases where offenders in British Columbia have received lower sentences than the Crown is seeking for Mr. Gumban, for what he has characterized as more serious offending. Given Mr. Gumban’s antecedents, and considering Mr. Gumban’s willingness to continue to engage in a course of counselling, he argues that a suspended sentence would adequately meet the principles of sentencing.

He further submitted that even if I were to determine that a jail sentence were appropriate, that this ought to be in the 30 to 60 day range which would make the mandated 90 day sentence clearly and obviously “grossly disproportionate” to the appropriate sentence and therefore would constitute a breach of s. 12.

[36] In considering the gravity and circumstances of the offence, Defence has emphasized that the offence itself should not beconsidered to be at the higher end of the spectrum of sexual offences. He points to the much more egregious factual circumstances inmany of the cases that he has relied on. While this victim was 14 and still a youth, he points out that many of the victims in the cases hehas relied upon were much younger than V.T. Acknowledging that Mr.

Gumban was in a position of trust, he points out thatemployment as a custodian in a school cannot be considered to be on equal footing with, for example, an offence committed by a teacher(Careen) or a parent, grandparent or relative (F.O.R; R.C; MaxMenko). [37] With regard to the particular circumstances of the offender, he emphasizes that Mr. Gumban, who is now 45, does not have acriminal record. In embarking on this part of the particularized inquiry, he has asked me to consider all of the mitigating factors as wellas the impact that this offence has had on Mr.

Gumban’s life, (as already outlined in these reasons). [38] In considering the effect of the punishment on Mr. Gumban, he argues that incarceration will have a disproportionately negativeeffect. Due to Mr. Gumban’s sexual orientation and the nature of the offence, he argues that Mr.

Gumban is likely to be placed insegregation which would be a significant impact. [39] Defence has argued that the most appropriate sentence would therefore be a lengthy suspended sentence, and he has submittedthat a reasonable member of the public, properly apprised of the values and goals of the justice system, would consider the 90 daymandatory minimum sentence to be excessive and would be outraged by the prospect that I am required to impose it. REASONABLE HYPOTHETICALS ARGUED BY DEFENCE [40] Counsel for Mr.

Gumban advanced two reasonable hypotheticals, and argued that 90 day sentences in these circumstanceswould be grossly disproportionate. The first hypothetical involves an offender of otherwise good character, with First Nationsbackground, who had himself been the victim of sexual assault as a child. This offender would be 20 years old and exactly 5 years olderthan a victim.

As this scenario would engage Gladue factors and require the Court to consider all sanctions other than imprisonmentwhen reasonable in the circumstances, he argues that a 90 day jail sentence would clearly be grossly disproportionate and inconsistentwith principles of sentencing enumerated in ss. 718 and 718.2(

e) of the Criminal Code. [41] A further hypothetical presented contains the same facts as the first hypothetical; however, it would include an additional factorthat the accused suspected the victim to be 16, but did not take all reasonable steps to ascertain their age (s. 150.1(6) of the CriminalCode would not vitiate a finding of guilt, but might reduce the moral blameworthiness of the offender). [42] Defence argues that these two hypotheticals are realistic scenarios and not far-fetched and that if I were to be sentencing anAboriginal offender based on these hypotheticals, a 90 day mandatory jail sentence would be grossly disproportionate and constitutecruel and unusual punishment.

CROWN RESPONSE TO THE S. 12 BREACH ARGUMENT [43] Invitation to sexual touching of a minor is a specific intent offence, requiring proof beyond a reasonable doubt that the invitationto touch was for a sexual purpose. Crown argues that this implies a high degree of moral blameworthiness on the part of Mr. Gumban. They point out that in 2005 Parliament enacted mandatory minimum sentences for these types of offences.

As well, they argue that s.718.01, which was proclaimed in 2005, instructs sentencing judges in these kinds of offences to give primary consideration to thesentencing principles of denunciation and deterrence. By placing an emphasis on these two sentencing principles and requiring courts togive primary consideration to punitive sentencing principles, they argue that this in and of itself confirms the gravity of a s. 152 offencewhich attracts a mandatory minimum.

They have also pointed out that over the years Parliament has repeatedly expressed concernsregarding the exposure of vulnerable children to sexual exploitation and that sentences for these kinds of offences have been on theincrease over the years. [44] Crown argues that Mr. Gumban has failed to establish, on a balance of probabilities, that a 90 day sentence would constitutecruel and unusual punishment.

They rely upon multiple decisions where it has repeatedly been held that the mandatory minimumsentence for sexual offences committed against children under s. 151 has not been found to violate s. 12 of the Charter, including caseswhere the offenders have had significant cognitive deficits, have suffered from mental illness or are Aboriginal (R. v. Lonegren, 2009BCSC 1678; R. v. B.(T.M.), 2011 ONCJ 528, affirmed 2013 ONSC 4019; R. v. Cyr, November 19, 2013, Port Alberni Registry No.35120-1 (B.C.P.C.); R. v. R.R.G.S., 2014 BCPC 170; R. v. E.M.Q., 2015 BCSC 201; R. v. Horswill, 2017 BCSC 35; R. v.

Hayes (10September 2015), Surrey Registry No. 203783-2C (B.C.P.C.); (Khan)). Crown also points to a recent decision of the BC ProvincialCourt where a s. 151 and s. 152 mandatory minimum sentence of 90 days was upheld (R. v. Campbell, September 2, 2016, NorthVancouver Registry No. 60869-2C (B.C.P.C.)) and although the Judge in that case found the mandatory minimum sentence was“excessive”, he did not find that it violated s. 12 of the Charter. [45] Crown argues that recognizing that crimes involving sexual abuse of children is grave and serious, is well established inCanadian jurisprudence. For example: . . . .

As to moral blameworthiness, the use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything buta crime demonstrating the worst of intentions. R v L.F.W 2000 SCC 6 , [2000] 1 S.C.R. 132, para. 31 and, . . . . The criminal law operates to protect the vulnerable not just by punishing those who subject the vulnerable to risk of harm, but byreinforcing the message that we condemn the attitude which promotes such conduct….the harm inherent in the crime of sexualinterference extends well beyond the one child victim.

Harm to any child in the community affects the rights and security of everyonebecause perpetrators of crimes against children strike a blow directly at one of the core values in our society - protection ofchildren….prey upon innocent children and you will pay a heavy price!

R. v. Hajar, 2016 ABCA 222, at para. 67 [46] Crown argues that all courts that have considered the constitutionality of the mandatory minimum sentences involving s. 151offences (sexual interference) have found it to be an extremely serious offence. In the Crown’s submission, the offence of invitation tosexual touching of a minor, although it does not result in actual physical contact, is no less grave than sexual interference. Thus, Crownargues that the gravity of a s. 152 offence must weigh heavily in the balancing required under s. 12. [47] Insofar as a consideration of the consequences of the offender’s actions is concerned, Crown argues that it was, as reportedthrough the

summary of the victim impact statement, clearly a traumatic experience for V.T., and that it is difficult to predict whatimpact this experience will have on V.T. in the future. [48] When I am analyzing the characteristics of Mr. Gumban and the particular circumstances of the offence, I must consider allaggravating and mitigating circumstances that would affect the appropriateness of the sentence (Morrisey). As previously outlined,Crown acknowledges that in this case Mr. Gumban has multiple mitigating circumstances.

However, they argue that the mitigatingfactors do not outweigh the aggravating factors that arise from the circumstances of the offence, or outweigh the gravity of the offence. One of the aggravating factors is that Mr. Gumban was in a position of trust to V.T. because he was employed at V.T.’s school andtherefore had some limited authority over V.T., who would have perceived him to be a responsible adult person working in the school. Mr. Gumban’s interaction with V.T. was, they argue, persistent (spanning 2 days), deliberate and premeditated.

They also emphasizethat the offence in and of itself has been reflected as constituting a statutory aggravating factor given that V.T. was under 18 (s. 718.1(a)(iii)) and that the offence has had a significant impact on V.T. (s. 718.2(1)(iii.1)). [49] While a 90 day jail sentence will no doubt have a significant impact on Mr. Gumban, Crown argues that an intermittentsentence will have a lesser impact as it will allow him to continue to work and to be with his family (Morrisey; Goltz). [50] I must consider the penological goals and sentencing principles upon which the sentence is to be fashioned.

Crown argues that Imust analyze these factors to determine “whether Parliament was responding to a pressing problem, and whether its response is foundedon recognized sentencing principles” (Morrisey). It is well established law that a mandatory minimum sentence is not unconstitutionalsimply because it fetters a sentencing judge’s discretion (Smith; Latimer; R. v. Ferguson, 2008 SCC 6; R. v. Chambers, 2014 YKCA 13).

Crown argues that there can be no doubt that Parliament was responding to a pressing societal problem when it first amended s. 152 ofthe Code to provide for mandatory minimum sentences, and later to increase them. They point out that the mandatory minimum sentencefor a s. 152 offence and the principles enunciated in s. 718.01 of the Code which makes denunciation and deterrence primary sentencingconsiderations when an offender has abused a young person, were first enacted in 2005 by The Protection of Children and OtherVulnerable Persons Act.

They argue that Parliament clearly had the intention of ensuring that offenders who victimized young peoplereceive longer sentences. This general intent is clearly expressed in the

preamble to that Act. The relevant sections were then amendedin 2012 to increase the mandatory minimum sentences for s. 151 and s. 152 offences via the Safe Streets and Communities Act. Crownargues that this was a continuing a response to the same pressing and substantial societal concerns and that sentences for sexual offencesagainst children have therefore been increasing incrementally over time (R. v. Rich, 2014 BCCA 24; R. v. K.R.J., 2016 SCC 31).

Thus, ithas been argued that the mandatory minimum sentence in s. 152 is clearly consistent with many valid penological goals and that thesentencing principals of denunciation and deterrence must be the primary considerations when sentencing an offender who sexuallyoffends against a child. [51] In conducting a comparison of punishments imposed for similar crimes in British Columbia or elsewhere in Canada, Crownargues that even if there were not a 90 day mandatory minimum sentence, Mr. Gumban would clearly be facing a custodial sentence andnot a suspended sentence.

This is especially so because there has been an escalation in the severity of sentences imposed where childrenare the victims of sexual offences. Crown has provided multiple cases where custodial sentences have been imposed for the offence ofsexual touching (Rich; K.R.J.; R. v. H(SM), 2006 NBWB 379 (also indexed as R. v. Hatfield); R. v. M.(C.), 2012 MBQB (also indexed asR. v. C.M.M.); R. v. Maley, 2014 BCSC 2532; R. v. Thain, 2007 CarswellOnt 9903 (O.N.S.C.); R. v. C.(F.), 2016 ONSC 6059 (alsoindexed as R. v. F.C.); R. v. Goolcharan, 2015 ONSC 6094 (also indexed as R. v. G.); R. v.

Kanigan, 2014 SKQB (also indexed as R. v.G.R.K.); R. v. Dow, 2013 NSCA 111). [52] In balancing all of the contextual factors, Crown has therefore submitted that the 90 day mandatory minimum sentence is notgrossly disproportionate in the circumstances of this case. They remind me that the offence is in and of itself an extremely serious oneand emphasize the multiple aggravating circumstances of this offence. They have submitted that Mr.

Gumban’s moral blameworthinessin this specific intent offence is extremely high as he deliberately targeted a young male who spoke a similar dialect, first showed himsome pornography, invited him to speak in an area away from his friends, and then took the opportunity to invite the sexual touching. Inconclusion, they argue that the circumstances of this offence clearly warrant a sentence that emphasizes denunciation, deterrence andprotection of the public and that this can be best achieved by a 90 day jail sentence, which they concede can appropriately be servedintermittently.

CROWN RESPONSE TO REASONABLE HYPOTHETICAL [53] Crown argues that if I engage in a reasonable hypothetical analysis, my decision may potentially have far reachingconsequences, despite my inability to make a formal declaration of constitutional invalidity (Lloyd). They remind me that Nurspecifically addresses what ought to be considered a reasonable hypothetical analysis.

It specifies that the inquiry must be grounded incommon sense and experience and must avoid personal characteristics that produce remote or far-fetched examples. [54] It is the Crown’s submission that while I am not obliged to consider the two reasonable hypotheticals argued by defence(Lloyd), if I do consider them, it is clear that the hypotheticals were crafted by Defence counsel to create the most innocent orsympathetic cases, rather than as examples grounded in common sense and experience.

The fact that the age difference between theoffender and the victim falls just outside the “close in age” exception does not, they argue, diminish the gravity of the offence. They alsosubmit that the fact that the hypothetical offender is Aboriginal, does not automatically entitle him to a reduced sentence. Aconsideration of the Gladue ( (SCC), [1999] 1 S.C.R. 688) factors in sentencing is always required, given thatsentencing is an individualized process. The Supreme Court of Canada in Gladue; R. v. Ipeelee, 2012 SCC 13; and R. v. Nasogaluak,

2010 SCC 6, has recognized that the Gladue factors can be applied from the starting point of a statutorily imposed sentence. Crownpoints out that the lack of a large age gap does not presuppose that this would be a mitigating factor. Likewise a failure to takereasonable steps to ascertain the age of a victim does not amount to a defence in law and should not be considered a mitigating factor onsentence.

They argue that the Court must still undertake a full analysis and apply individualized factors to any analysis and that thecircumstances outlined in the far-fetched hypotheticals proposed ought not to give rise to a finding that a 90 day sentence wouldconstitute a cruel and unusual punishment. DECISION [55] The s. 152 offence of invitation to sexual touching of a victim under the age of 16 is a serious/grave offence. So serious, thatParliament first prescribed a mandatory minimum sentence for this offence in 2005.

This offence involves a sexually mature adult, withspecific intent, preying on someone under the age of 16. [56] I agree that Mr. Gumban is entitled to receive the benefit of all of the mitigating factors outlined by his counsel. Mr. Gumban isa sympathetic offender. He is 45 years old, has no criminal record and has pled guilty to this offence. He is hard working, married andhas two young children. However, the offence that he committed contains many aggravating features which have led to my conclusionthat the circumstances surrounding the commission of this offence are both concerning and egregious. Mr.

Gumban deliberately initiatedcontact with V.T., who was previously unknown to him, and attempted to gain V.T.’s trust. He spoke to him in their common shareddialect and then invited V.T. to be in contact with him by providing V.T. with his phone number. This all took place in a high school,where V.T. is entitled to feel protected from sexual predators and to always believe that he would be extremely safe and free fromunwanted sexual advances. Mr. Gumban approached V.T. on two consecutive days. On the second day he attempted to further gainV.T.’s trust by speaking to him again in their shared dialect.

He crossed the threshold to engaging in extremely inappropriate/criminalbehaviour when he showed V.T. a pornographic image of a young male with an erect penis. He then told V.T. that he had morepornographic images and asked V.T. and his friend if they would like to see the images. He then deliberately called V.T. away from thesupport of his friends and held a private conversation with V.T. where Mr. Gumban inappropriately asked V.T. if he’d had sex withanyone. Mr.

Gumban then followed up that question by asking V.T. if he wanted to touch his penis or to eat it, and furthered theinvitation by suggesting they go together to the washroom. When V.T. declined the invitation, Mr. Gumban responded by requestingthat V.T. not tell his friends or his family about their conversation. Thankfully, there was no actual sexual contact between Mr. Gumbanand V.T, in light of V.T.’s reaction to the request. [57] It is clear that it will be difficult for Mr. Gumban to serve a jail sentence of any length, given his antecedents and the nature ofthe offence that he has pled guilty to.

However, I agree with Crown, that because the sentence they are seeking is 90 days of jail, thatthis affords Mr. Gumban the ability to serve his sentence intermittently, which will lessen the severity and impact of a jail sentence uponhim. [58] The penological goals and sentencing principles reflected in this mandatory minimum sentence are also clear. Parliament hasintended to denounce this kind of conduct and to deter other like-minded adults from preying upon children and young teenagers.

Basedon the number of cases that I was provided with during this sentencing, and having reviewed them all, it is clear that the need to protectchildren from sexual interference or invitation to sexual touching, sadly continues to be a pressing and substantial societal concern. Asstated in Lonegran, to the extent that jail fosters individual and general deterrence, then sentencing offenders to jail will advance the goalof protecting children.

I am satisfied that the 90 day mandatory minimum sentence has valid penological goals. [59] I was provided with multiple cases from both Crown and Defence counsel which involve sexual offences between adults andvulnerable children/teenagers. In attempting to analyze or distil the types of sentences that Courts have imposed for similar offences orsimilar offenders, it was extremely difficult if not impossible to find a case that remotely mirrored the facts in this case. Most of thecases provided to me involved multiple sexually related offences. Each case clearly turned on its own facts.

I have read and consideredeach and every case provided to me by both Crown and Defence (see Appendix A for a list of all cases relied upon). I have alsoconsidered the specific circumstances outlined in each case and the analysis of the law and sentencing principles contained in each case. I do not intend to conduct a detailed analysis of all of these cases as I do not believe that it is necessary for me to do so when engaging inthe particularized inquiry. What is clear from a review of the cases is that a jail sentence, and not the imposition of a suspendedsentence, is the norm.

As stated by Judge Birnie in R.R.G.S., at para. 82: . . . a comparison of punishments imposed for other similar crimes in Canada reveals that sexual offences involving children willgenerally draw a jail term, whether the offender is aboriginal or not . . . What is also clear is that sentences appear to be increasing (E.M.Q., p. 122), and that as well, the mandatory minimum sentences forthese types of offences have been increased over the years by Parliament. [60] I have also considered the pre-sentence report and the psychological assessment, and the fact that it has been determined thatMr.

Gumban is at a low risk to reoffend. I must also be mindful, however, of the statutory aggravating factors contained in s. 718.2(a)(ii.1) (abuse of a person under 18) and that Mr. Gumban was in a limited position of trust working as a responsible adult in a high schoolwhere V.T. ought to have been confident that he would not be preyed upon. Mr. Gumban’s behaviour towards V.T. appeared to betargeted and deliberate. When Mr. Gumban’s invitation was declined, he cautioned V.T. to tell no one.

V.T. has expressed that thebehavior has had a significant impact on him (s. 718.2(1)(iii.1)). [61] The law requires that I give primary consideration to the punitive sentencing principles of deterrence and denunciation whensentencing Mr. Gumban. His invitation to engage in sexual touching was directed toward a 14 year old boy. While I am mindful that acriminal conviction and a requirement to register with SOIRA are on their own significant penal consequences, it is clear to me that a jailsentence is necessary in order to meet these important principles of sentencing. As outlined by the SCC in R. v.

M(CA) (SCC), [1996] 1 SCR 500, at p. 81: The objective of denunciation should also communicate society’s condemnation of the particular offender’s conduct. In short, asentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for

encroaching on our society’s basic code of values as enshrined within our substantive criminal law. As well, as stated in para. 19 of Kanigan, sexual activity is not an element of a s. 152 offence. The offence is solely inviting a child to engage in sexual activity and nothing more is required. Thus, the lack of sexual activity is not a factor that lessens the impact of this offence.

Parliament has determined that offences involving communication with young people for a sexual purpose will carry with them significant sentencing consequences and in the case of an offence under s. 152, the mandatory minimum sentence has been increased over time which is a clear reflection of societal condemnation of this type of conduct. [ 62 ] Having considered all of the contextual factors and arguments outlined in this decision, I have not been convinced, on a balance of probabilities, that a 90 day jail sentence for Mr. Gumban would be grossly disproportionate.

The test that I am to apply in my deliberations is stringent and demanding. In order to find a s. 12 breach I am required to reach a conclusion that the mandatory minimum sentence is much more than merely excessive. I must conclude that the 90 day sentence is so excessive that it would outrage standards of decency to the extent that Canadians would find the punishment abhorrent or intolerable.

I have been directed by the SCC in Latime r, that I should be reluctant to interfere with the considered views of Parliament and that I should do so only in the clearest of cases where the punishment prescribed would be so excessive when compared with the punishment prescribed for other offences that it would outrage standards of decency. [ 63 ] The SCC has directed that it will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it would violate s. 12 of the Charter . This is a specific intent offence and as a consequence the moral blameworthiness is high.

While Mr. Gumban, is a first time offender and might have received a sentence of marginally lower than 90 days in the absence of a mandatory minimum sentence, it is clear to me that a jail sentence and not a suspended sentence is what is appropriate to meet the primary sentencing objectives. Despite the presence of mitigating factors, given all of the aggravating features that I have outlined, I do not find that the 90 day mandatory minimum sentence is so grossly disproportionate that the average Canadian would find it abhorrent or intolerable or to offend standards of decency. Mr.

Gumban has therefore failed to satisfy me, on a balance of probabilities, that the 90 day mandatory minimum sentence would constitute cruel and unusual punishment. DECISION REGARDING REASONABLE HYPOTHETICALS [ 64 ] I have not been persuaded that the “reasonable hypotheticals” provided by Defence counsel would alter my decision. The proposed hypotheticals put forward by Defence counsel appeared to me to be of a more far-fetched variety by seeking to create the most innocent or sympathetic case rather than an example grounded in common sense or realistic experience.

The Criminal Code has a “close in age exception” which was enacted to allow for consensual sexual relations between young people. The fact that this hypothetical offence falls just outside the “close in age” exception or proposes a sympathetic accused who has neglected to ascertain the age of the victim, does not, based on those bare facts, diminish the gravity of this kind of offence.

Lloyd specifies in para. 24 that the wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate. A s. 152(

b) offence in and of itself does not have a particularly wide range of conduct to consider. Based on the limited characteristics of the offender and offence proposed in these reasonable hypotheticals, I am not convinced that they support a finding that the mandatory minimum would constitute a breach of s. 12 of the Charter . [ 65 ] I therefore sentence Mr. Gumban to a 90 day jail sentence, which he shall serve intermittently. He will begin to serve his sentence today.

He will then report to The North Fraser Pre Trial Services Centre located at 1451 Kingsway Ave. in Port Coquitlam, BC, at 6:00 p.m. on Friday, August 4, 2017, unless he is directed by Corrections to serve his sentence elsewhere and he shall remain in custody until Sunday, August 6, 2017, at 6:00 p.m.

Thereafter he will report on each successive Friday at 6:00 p.m. and he shall remain in custody until each Sunday at 6:00 p.m. until he has completed serving his jail sentence. [ 66 ] While serving the intermittent sentence he will be subject to a probation order which will include the following conditions: • he will keep the peace and be of good behavior; • he will have no contact directly or indirectly with P.A., V.T. or K.V; • he will not go anywhere that he knows P.A., V.T. or K.V. live, work, or go to school; • He will not be found in the area bounded by East 49 th Avenue on the North, East 57 th Avenue and Argyle Street on the South, Victoria Drive on the East and Knight Street on the West, in Vancouver, B.C; • he will have no contact directly or indirectly with any person known by him to be or reasonably appear to be under the age of 16 unless he is in the immediate presence of Grace Gumban or pursuant to an order under the Family Law Act, the Divorce Act or the Child Family and Community Service Act; • he will not to attend at any public park, or swimming area where persons under the age of 16 are present or may reasonably expected to be present including any daycare centre, school ground, playground, skating rink, recreational centre or community centre, unless he is in the presence of Grace Gumban, or as provided for in an order under the Family Law Act, Divorce Act or Child Family and Community Service Act . [ 67 ] As it will take Mr.

Gumban a considerable period of time to complete his jail sentence, and because he has successfully been on bail without incident and is prepared to engage in further counselling, I have concluded that a 12 month probation order following his jail sentence will be sufficient to meet the principles of sentencing.

In addition to the statutory terms the probation order will provide that: • he will report to a probation officer at 275 East Cordova on the next business day after he concludes his jail sentence and thereafter as directed; • he will advise the probation officer of his address when he first reports and he shall not change that address without first obtaining the written permission of the probation officer;

• he will have no contact directly or indirectly with P.A., V.T. or K.V.; • he will not go anywhere that he knows P.A., V.T. or K.V. live, work, or go to school; • he will not be found in the area bounded by East 49th Avenue on the North, East 57th Avenue and Argyle Street on the South,Victoria Drive on the East and Knight Street on the West, in Vancouver, B.C. • he will have no contact or communication directly or indirectly with or to be found in the company of any person known by him tobe or reasonably appear to be under the age of 16 unless he is in the immediate presence of Grace Gumban or pursuant to an order underthe Family Law Act, the Divorce Act or the Child Family and Community Service Act; • he will not to attend at any public park, or swimming area where persons under the age of 16 are present or may reasonablyexpected to be present including any daycare centre, school ground, playground, skating rink, recreational centre or community centre,unless he is in the presence of Grace Gumban, or as provided for in an order under the Family Law Act, Divorce Act or Child Family andCommunity Service Act; • he will attend for counselling or similar programs if directed which may include but not be limited to a sex offender treatmentprogram and complete any counselling or programs to the satisfaction of the probation officer. [68] Pursuant to s. 487.051(1), Mr.

Gumban will provide a sample of his DNA when he is taken into custody. [69] There will also be an order pursuant to s. 490.012 that Mr. Gumban comply with the Sex Offender Information Registry for 10years. [70] Mr. Gumban is required to pay the victim fine surcharge pursuant to s. 737 of the Criminal Code and he will have until October2, 2017, to do so. _____________________________ The Honourable Judge J. Werier Provincial Court of British Columbia APPENDIX A R. v. Lloyd, 2016 SCC 13 R. v. Smith, (SCC), [1987] 1 S.C.R. 1045 Steele v. Mountain Institution, (SCC), [1990] 2 S.C.R. 1385 R. v.

Nur, [2015] S.C.R 15 R. v. Ferguson, 2008 SCC 6, at para. 14 R. v. Lloyd, 2016 SCC 13 at para. 33 R. v. Smith, [1987] 1 S.C.R. 10 R. v. Goltz, (SCC), [1991] 3 S.C.R. 485 R. v. Morrisey, 2000 SCC 39 , [2000] 2 S.C.R. 90 R. v. Stewart, 2010 BCCA 153 R. v. Latimer, 2001 SCC 1 R. v. McCall, 2011 BCPC 143 R. v. Kanigan, 2014 SKQB 147 R. v. M.J.A.H., 2016 ONSC 249 R. v. Careen, [2012] BCSC 918 R. v. F.O.R., [2016] BCPC 223

R. v. Maxmenko, [2015] BCSC 2224 R. v. Khan, 2013 ONCJ 267 R. v. R.C., [2016] ONCJ 605 R. v. Dickey [2016] BCCA 177 R. v. E.R.D.R., 2016 BCSC 684 (breach ruling), 2016 BCSC 1759 (s. 1 ruling), 2016 BCSC 1758 (Reasons for Sentence) R. v. S.J.P., [2016] NSPC 50 R. v. M.L., [2016] ONSC 7082 R. v. Lonegren, 2009 BCSC 1678 R. v. B.(T.M.), 2011 ONCJ 528, affirmed 2013 ONSC 4019 R. v. Cyr, November 19, 2013, Port Alberni Registry No. 35120-1 (B.C.P.C.) R. v. R.R.G.S., 2014 BCPC 170 R. v. E.M.Q., 2015 BCSC 201 R. v. Horswill, 2017 BCSC 35 R. v. Hayes (10 September 2015), Surrey Registry No. 203783-2C (B.C.P.C.) R. v.

Campbell, September 2, 2016, North Vancouver Registry No. 60869-2C (B.C.P.C.) R. v. L.F.W 2000 SCC 6 , [2000] 1 S.C.R. 132 R. v. Hajar, 2016 ABCA 222 R. v. Ferguson, 2008 SCC 6 R. v. Chambers, 2014 YKCA 13 R. v. Rich, 2014 BCCA 24 R. v. K.R.J., 2016 SCC 31 R. v. H(SM), 2006 NBWB 379 (also indexed as R. v. Hatfield) R. v. M.(C.), 2012 MBQB (also indexed as R. v. C.M.M.) R. v. Maley, 2014 BCSC 2532 R. v. Thain, 2007 CarswellOnt 9903 (O.N.S.C.) R. v. C.(F.), 2016 ONSC 6059 (also indexed as R. v. F.C.) R. v. Goolcharan, 2015 ONSC 6094 (also indexed as R. v. G.) R. v. Kanigan, 2014 SKQB (also indexed as R. v.

G.R.K.) R. v. Dow, 2013 NSCA 111 R. v. Gladue ( (SCC), [1999] 1 S.C.R. 688) R. v. Ipeelee, 2012 SCC 13 R. v. Nasogaluak, 2010 SCC 6 R. v. M(CA) (SCC), [1996] 1 SCR 500