R. v R.J., 2017 MBPC 33

Cite # 2017 MBPC 33 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) ) Michelle Bright and Deborah Carlson, for the Crown ) - and – ) ) ) J.E.D ) ) Michael Walker and Allison Fenske, for the Accused ) ) Judgment delivered: ) July 26, 2017 Restriction on Publication Pursuant to s. 486.4 of the Criminal Code , any information that could identify the complainant or the accused shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence.

ROLSTON, P.J. [ 1 ] J.E.D has pled guilty to two counts of sexual interference against his two young nieces over a two year period. In this case, the Court is required to determine an appropriate sentence for an offender whose mental health challenges are compelling and tragic but who committed offences that demand emphasis to be placed on deterrence and denunciation. [ 2 ] The offences involve many incidents spanning close to three years, during which J.E.D fondled the victims both over and under each victim’s clothing. In some instances J.E.D was babysitting the victims.

The Crown has proceeded by indictment and is seeking a jail sentence of between 3 ½ to 4 years. [ 3 ] Sexual interference carries a mandatory minimum one year sentence where the Crown proceeds by indictment. J.E.D has challenged the constitutionality of this minimum sentence and suggests that the appropriate sentence is a suspended sentence with three years of probation on account of J.E.D’S significant challenges associated with Autism Spectrum Disorder (ASD). [ 4 ] There are a number of steps to be undertaken in arriving at the appropriate sentence in this case.

Each of the following will be determined: • Should the counts be imposed concurrently or consecutively? • Does the Court have to decide the constitutionality of

section 151 of the Criminal Code ? • If so, does

section 151 of the Criminal Code infringe upon sections 9 , 12 and 15 of the Canadian Charter of Rights and Freedoms ? • If so, is any breach of the Charter justified by

section 1 of the Charter ? • What is the appropriate sentence for J.E.D.? [ 5 ] The determination of a just sentence involves consideration of each question and analysis as to how the sentencing principles apply in the case of an individual who suffers from life challenges in a unique way. Concurrent vs. Consecutive Sentence [ 6 ] It is important to note at the outset that there are two victims of J.E.D.’s actions, S.L. and A.P. In such circumstances, direction has been given to sentencing judges as to how to determine whether the sentence should be applied concurrently or consecutively.

This was most recently reinforced in R. v R.J. , 2017 MBCA 13 , at paragraph 13 : [13] The proper approach to sentencing on multiple offences is well-known. First, the judge examines the degree of nexus between

the offences, as required by

section 718.3(4) of the Code , to decide whether any or all of the offences will be served concurrently or consecutively. Second, where concurrent sentences are imposed, the judge determines a fit sentence for the most serious offence and makes the other sentences lesser in length or determines a single sentence for the set of offences. Where concurrent sentences are imposed, the judge is required to ensure that the length of the sentence does not give an offender a free ride for any criminal conduct. Alternatively, if consecutive sentences are imposed, the judge determines a fit sentence for each offence.

Third, in the case of consecutive sentences, the judge totals the sentences and then gives the combined sentence a last look in accordance with the totality principle to see if the combined sentence is “unduly long or harsh” because it exceeds the overall culpability of the offender (see

section 718.2 (

c) of the Code ). Fourth, where the judge determines that the combined sentence is excessive, the sentence is adjusted to the point where it is proportional to the offender’s overall culpability. When a sentence is reduced to maintain the fundamental principle of proportionality, the judge must, as far as possible, ensure that the offender does not get a free ride on any criminal conduct. [ 7 ] In the context of sexual offences, the Criminal Code was amended on July 17, 2015 to require the court to impose consecutive sentences where an offender is being sentenced for sexually abusing multiple victims: 718.3

(7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct. (

b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under

section 163.1 , be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under

section 163.1 . [ 8 ] This presumably was intended to address the “no free ride” principle that has garnered much discussion in this jurisdiction (see: R. v. N.A.S. , 2007 MBCA 97 , R. v. Lagimodiere (S.M.E.) , 2008 MBCA 137 , R. v. Wozny (C.P.) , 2010 MBCA 115 , R. v. P.K. , 2012 MBCA 69 ). The Crown concedes that since

section 718.3(7) was not in force when the present offences were committed the Court is not required to apply it to this case. The Court must, however consider the case law as it stood prior to the enactment of

section 718.3(7) to determine whether concurrent or consecutive sentences are appropriate here. [ 9 ] The rationale for

section 718.3(7) is effectively captured in the reasoning applied by the Court of Appeal in R . v. P.K ., supra. In that case, the accused offended against two of his step sisters. The court determined that while the accused’s childhood factors motivated the offending against both victims, it was improper to reduce the sentence such that the sentence for one of the victims was reduced to nothing. Both

section 718.3(7) and the case law prior to the enactment of that

section reflect the fact that while there may be underlying factors that lead to offending against more than one victim, sexual offending against multiple victims result in separate and distinct harm to those who have been victimized. For this reason separate and distinct, and therefore consecutive sentences must result. [ 10 ] The Informations in the case at bar cover the same time span, albeit with one count predating the commencement of the other by over 2 ½ years. The offences occurred over a long period of time.

The victims are linked because they are both nieces to J.E.D. and were both victimized in a similar way when they were of a similar age. [ 11 ] The true nexus between the two counts on the Information is that the circumstances of J.E.D.’s ASD remained undetected throughout his offending. Expert evidence has been presented to the court that suggests there is a link between J.E.D.’s ASD and these offences. J.E.D. had not been diagnosed with ASD when he was placed in a position of authority over the victims.

In other words, J.E.D.’s circumstances remained static and unresolved throughout the time he offended. [ 12 ] While courts have used concurrent sentences to recognize the role of unaddressed background factors involving offence sprees, it would be inappropriate to apply the same logic to sexual offences, as it would diminish the degree to which each victim has been impacted.

Accordingly, the court must apply the mandatory minimum sentence of one year to each offence consecutive to one another, such that a minimum of two years is to be imposed, subject to the challenge to the mandatory minimum pursuant to the Charter of Rights and Freedoms . Does the Constitutional Issue Need to be Decided and Does the Mandatory Sentence Infringe

Section 12 of the Charter ? [ 13 ] J.E.D. contends that the mandatory minimum sentence in his case amounts to a breach of

section 12 of the Charter which says: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [ 14 ] The parties agree that this court has jurisdiction to refuse to apply the mandatory minimum if the court determines that

section 151 of the Criminal Code is unconstitutional (see R. v. Lloyd , 2016 SCC 13 , at paragraph 19 ). However, the Crown argues that there is no need to consider the constitutional issue in light of the fact that the appropriate sentence is well above the mandatory minimum (see Lloyd , supra). [ 15 ] It is well established law that in order to find

section 151 unconstitutional, the court must find the mandatory minimum sentence to be “grossly disproportionate” to the appropriate sentence, having regard to the nature of the offence and the circumstances of the offender (see Lloyd , at paragraph 22 ; R . v. Nur , 2015 SCC 15 ). This analysis involves two steps. First, the court must employ the principles of sentencing to determine a proportionate sentence or range of sentences without regard to the mandatory minimum.

Next, the court must determine whether the mandatory minimum is “so excessive as to outrage the standards of decency” in light of that fit and appropriate sentence (see Lloyd at paragraphs 23 and 24 ). [ 16 ] It is clear that the decision as to whether to enter into a constitutional analysis and the first step of that constitutional analysis both require that the court determine the range of sentences for the offence. Accordingly, the court must begin by determining the appropriate range of sentences that should apply to J.E.D. What is a fit and appropriate sentence? [ 17 ] In R. v.

Sidwell , 2015 MBCA 56 , the court observed at paragraph 36:

The determination of an appropriate range of sentencing is fact-specific, as well as charge-specific. When considering an appropriate sentence, a sentencing court should conduct that analysis in the context of factually similar cases. All cases of child sexual abuse should be treated in a principled manner, and if the conduct of the accused and the circumstances of the offence and offender are similar, then similar sentences should result. [ 18 ] The court must consider the nature of the offence and the background of the offender in comparison to similar offences in determining the fit and appropriate sentence. (

a) Sexual Interference on S.L. and A.P. [ 19 ] It is noteworthy that sentences for sexual offences have been increasing over the past several years. As observed in R . v. Norton , 2016 MBCA 79 , the offence that J.E.D. has been charged under was amended in 2005 to increase the maximum sentence, and in 2012 to add the minimum sentence which is being challenged in this case.

The purpose of these amendments has been recognized as being designed to “widen the scope of protection for children and deter and denounce those who sexually offend against children” (see paragraph 24 and 25). [ 20 ] The events that lead J.E.D. to court are unlike many of those who face similar charges. J.E.D.’s parents are divorced. When the offences were discovered, J.E.D. was 23 years old and residing with his father, his sister and his nieces, S.L. and A.P.

J.E.D.’s sister was not in a position to parent, so J.E.D.’s parents were left to juggle many responsibilities, including coping with the fact that J.E.D. was developmentally delayed. As a result, J.E.D. was unfortunately put in a position to care for the children from time to time. The offences came to light one day when J.E.D.’s father discovered J.E.D. fondling S.L., aged six under a blanket on the living room couch. This incident was reported to the police and the subsequent investigation uncovered that fondling had been occurring with A.P., aged nine over three years and with S.L. over a six month period.

During these times J.E.D. would have his nieces lay on top of him or sit next to him and J.E.D. would touch their vaginas over, and sometimes under their clothing. There were also occasions where J.E.D. would use his foot to touch the vagina of his nieces. In most cases, this conduct would occur when everyone was watching television, and on some occasions while J.E.D. was babysitting. J.E.D. was co-operative with the investigation from the outset and has subsequently been diagnosed as being on the ASD spectrum.

In the course of discussing his offending with his therapy team, J.E.D. estimated that he offended against his nieces between 70 and 100 times. [ 21 ] The parties agree that J.E.D.’s actions amount to a “major sexual assault”. The definition of this term has evolved in recent case law from a categorical approach to one that focuses on the conduct of the offender and the impact on the victim. In R. v.

Sidwell , supra., our Court of Appeal commented: What is important is to find an appropriate sentence which responds to the conduct of the accused and the aggravating and mitigating circumstances, rather than determining specifically whether the accused’s conduct constituted a major sexual assault.

Sidwell directs that the court examine the extent to which the offender’s actions compromised the sexual integrity of the victim in order to apply the starting point that is typically associated with a major sexual assault. [ 22 ] In this case, while the individual actions of J.E.D. were not as intrusive as many sexual acts that have been considered to be major sexual assaults, the acts occurred a staggering number of times over several years. Further, J.E.D. was at times in a position of trust to his nieces.

These are factors that are compelling in determining that the court must begin an analysis as to the appropriate sentence as directed by Sidwell (at paragraph 49 ) that “ the starting point is four to five years for the major sexual assault of a child when in a position of trust, assuming that the accused is a mature person with no criminal record and prior good character”. [ 23 ] The starting point reflects the seriousness of the offence and the fact that the principles of deterrence and denunciation are the paramount considerations in sentencing for an offender who has sexually abused a child.

Sections 718.01, 718.2(a)(ii.1) and (iii) of the Criminal Code also reinforce the necessity for deterrence and denunciation as primary considerations and justify the Court commencing its consideration of sentence with the starting point. [ 24 ] It is trite to say that a starting point is merely a starting point. The court must consider the aggravating and mitigating aspects of the offence and may increase or decrease the sentence accordingly. [ 25 ] The Court has already identified the aggravating factors encompassed in J.E.D.’s behaviour.

There were many instances of abuse, there were two victims and he was in a position of trust at times in respect of both of his nieces. [ 26 ] There is also an absence of several aggravating factors here that tend to be associated with sentences of the duration at or above the starting point. For example, J.E.D. did not engage in any grooming or threats of violence in order to cover up his actions. Lastly, the offences in question amount to fondling.

While the conduct itself and the extent of that conduct is abhorrent, other cases of sexual interference involve more serious intrusions on the victim’s sexual integrity. While these facts are not mitigating, they do distinguish these circumstances from many other cases that initiate the same starting point. [ 27 ] It should also be noted that while the court can, and does infer that victims of sexual interference incur psychological harm (often not manifesting until years later), there has been no evidence of the extent to which the victims here have been impacted.

The only input that has been offered to the court is that the victims in this case spoke to each other and “agreed that they wished [the Accused] would stop touching their privates”. There has been no evidence produced as to how their behaviour has changed throughout the time of the abuse or thereafter. There is no evidence as to any therapy that has been undertaken. Exhibit S-11 is a letter of support written by J.E.D.’s mother. She is also the grandmother of S.L. and A.P. She commented that the children: …are aware of [J.E.D . ’s] cognitive impairments. I do not observe resentment toward him at this time.

In fact, they have both asked if they can see him again someday. I hope that eventually there will be restored relationships. While the court must consider the conflicted source of these comments, they are the only concrete information regarding victim impact that is before the court.

[ 28 ]

Section 718.2(a)(iii.1) requires the court to consider significant victim impact as an aggravating factor. The Court is not satisfied that the evidence in this case illustrates significant victim impact, and as such the weight of victim impact as an aggravating factor is diminished as a consideration in this case, particularly in light of the fact that acts perpetrated upon both victims were less intrusive than many major sexual assaults. [ 29 ] There are several aspects of the circumstances of the offence that support a downward departure from the starting point.

The nature of relationship between the parties was unique. Quite apart from J.E.D.’s ASD diagnosis (which is discussed as a factor under “background of offender”) J.E.D. was unwillingly put into a position of trust. While hindsight is always 20/20, J.E.D. should not have been babysitting these children in light of his developmental delays known to the parents. Without blaming others, the evidence reflects that J.E.D. tried to avoid being put in a position of trust but was given little, if any, choice in the matter.

While J.E.D. was legally competent and an adult at the time, the Court accepts the defence submission that not all positions of trust should be regarded in the same way. The fact that J.E.D. was reluctantly placed in the position that he was in must factor into consideration, particularly given that he expressly attempted to avoid babysitting. Further, as stated, the nature of the acts perpetrated by J.E.D. are at the lower end of the scale, amounting to touching but no penetration of any kind.

These factors, along with the lack of certain aggravating factors remove the present circumstances from those that warrant a sentence in the four to five year range. (

b) Background of the Offender [ 30 ] The background of this particular offender presents a significant challenge in determining a fit sentence. The Court heard evidence over two days regarding the background of J.E.D. In addition, three comprehensive expert reports and several letters were filed that explained his background in both clinical and everyday terms. [ 31 ] J.E.D. has no criminal record and was 23 years old when his offending was discovered. [ 32 ] J.E.D. is far from the “mature” first time offender contemplated in Sidwell .

He was born with cerebral palsy and was later found to suffer from Attention Deficit Hyperactivity Disorder (ADHD). J.E.D. was considered to be in the upper level of low IQ as a child, often made poor decisions, was impulsive and reportedly experienced deficits in executive functioning. As a child, doctors thought that he may suffer from ASD, but no diagnosis was made in that regard. [ 33 ] In his childhood he was often physically ill due to a number of ailments.

His presentation was exasperated by the fact that he was physically tall and yet underweight due to a jaw deformity that made chewing and swallowing difficult. This added to his awkwardness, as he was skinny, physically uncoordinated, and had poor muscle development. Due to his physical issues J.E.D. often missed school. Dr. Laura Jakul, the registered psychologist who assessed J.E.D. and has treated him, opined that this compounded his mounting social barriers and lead to more isolation.

This is confirmed in several of the letters from family friends filed in support of J.E.D. [ 34 ] As he progressed through childhood and into his teens, J.E.D. experienced continual and increasingly apparent social issues. He was awkward and often misinterpreted social situations. He developed a number of specific and intense interests, but also became socially withdrawn and was often subjected to bullying behaviour. According to Dr.

Jakul, collateral information suggests that J.E.D. “had significant difficulty understanding social relationships since he was a young child, was internally focused and always different from other children”. Dr. Jakul surmised at that time that “he is most likely to have Asperger’s Disorder” which is consistent with ASD (see exhibit S-1, Psychological Risk Assessment, November 5, 2015, page 6).

However, throughout his youth, the suspicions of ASD mounted but apparently remained undiagnosed. [ 35 ] In the immediate aftermath of being charged, J.E.D. was admitted to the Health Sciences Centre Crisis Response Unit in December, 2014. He was suicidal. Reports from that time described him as having a flat affect and poor judgement and insight. His speech was tangential, and he was described as having delusions of grandeur including “grandiose religious thoughts and ideas”. He stabilized after being placed on medication.

Shortly thereafter, J.E.D. was referred to Forensic Psychological Services (FPS) and was assessed and began treatment with Dr. Laura Jakul. [ 36 ] Dr. Jakul was accepted by the court as a clinical psychologist in forensic psychology, to provide expert opinion evidence in sexual offending behaviour, sexual offender risk assessments, the characteristics of ASD, and the interplay between ASD and sexual offending behaviour. She was also qualified to give evidence regarding sexual offender treatment for persons with cognitive disabilities including ASD. [ 37 ] Dr.

Jakul described ASD as a neurodevelopmental disorder that results in deficits to one’s ability to socially function. This includes curtailing the ability to communicate, pick up social cues, relate to how another person is feeling or interpreting a social interaction and misreading one’s own social interactions. Also, ASD afflicted people tend to be rigid in terms of adapting to change. This could feature an inability to adjust to social situations, and manifests in an ASD afflicted person by intense focus on certain interests. J.E.D. presented with each of these characteristics. [ 38 ] Dr.

Jakul described that J.E.D. was classified at level 1 of the ASD spectrum, as he is able to communicate to a degree as opposed to a more severe ASD patient, who may not be able to communicate at all. She added that J.E.D. also suffers from ADHD, which is another neurodevelopmental disorder that results in added inability to focus in addition to the other symptoms of ASD. [ 39 ] Dr. Jakul also testified that J.E.D. is vulnerable due to “theory of mind” deficits. This means that he had an inability to understand what another person is thinking or feeling based upon the context around him. In Dr.

Jakul’s opinion, this characteristic makes J.E.D. vulnerable since he would be liable to manipulation in a setting such as jail, but also might be compromised on a daily basis in interpreting his and other people’s perspective on the world around him. [ 40 ] In addition, test results from J.E.D. suggested that he had symptoms associated with having experienced a major trauma, which may have been some form of sexual or other abuse, or could be attributable to a chaotic upbringing and extensive bullying he endured in his youth. Dr.

Jakul opined that such experiences would have had significant impact in light of the challenges he faces ingesting information due to being ASD affected.

[41] Dr. Jakul commenced therapy with J.E.D. that continued from November, 2015 until the time of submissions for this matter inApril, 2017. J.E.D. was described as receptive to treatment and doing well. In Dr. Jakul’s opinion, J.E.D. was a moderate-low risk toreoffend, and his offending related to a lack of understanding his situation clearly due to ASD, as opposed to criminal thinking. She alsotestified that a jail sentence would be a setback for J.E.D. given his vulnerabilities and in light of the influences present in a custodialsetting. Dr.

Jakul was of the view that the type of sex offender counselling available to J.E.D. in such a setting would be ineffective,since ASD afflicted people require a different approach than would be utilized for more mainstream clientele. [42] The Crown also called evidence in this sentencing hearing. Deanne Whalen testified as to the availability of treatment withinHeadingly Correctional Centre. She told the court that offenders who are in treatment within Headingly Correctional Centre for offencessimilar to J.E.D.’s would be likely housed at the Assiniboine Treatment Centre.

Therapy would be Cognitive Based Therapy thatincludes group and individual work in booklets. Ms. Whalen advised that there are residents who have various issues, including ASD,and that the unit staff do their best to tailor therapy to the needs of the individual residents. The Crown also called Tara Verbling fromStony Mountain Institution. She also testified as to the available facilities in the federal system. There J.E.D. would spend the firstperiod of time in the intake unit, until being assessed for needs and placement. The intake unit is comprised of other inmates who arenew to the institution.

Stony Mountain Institution runs a moderate and a high intensity sex offender program. Both programs are run in agroup format but can be adapted to facilitate needs, such as ASD. Both programs also rely upon the completion of written materials. While both witnesses presented as sincere in their desire to accommodate and provide adequate programming for J.E.D., several concernsarose from their evidence. Firstly, both institutions are required to involve group settings. The evidence suggests that this causes J.E.D.significant distress.

His inability to relate to others would inhibit his involvement in a group setting and would likely be disruptive toothers. This may lead to social alienation and victimization in one form or another. Secondly, the written format involved in doingtreatment is not conducive to J.E.D.’s needs. He would likely fall behind quickly. While both Crown witnesses described other ASDafflicted people “successfully completing the programming”, the Court questions what qualifies as “successful completion”.

Based uponthe evidence as to how J.E.D. functions, it is evident that his experience in an institution would be fraught with problems. [43] Dr. Daniel Rothman also testified as a registered clinical psychologist to provide expert opinion evidence as to the assessmentand treatment of sexual offending behaviour, the general characteristics of ASD, the interplay between ASD and sexual offendingbehaviour, and the recommended sexual offender treatment practices for persons diagnosed with ASD. Dr. Rothman is also employedby FPS, but did not have direct contact with J.E.D. However, Dr.

Rothman had reviewed J.E.D.’s file, consulted with Dr. Jakul and wasable to give an opinion based upon J.E.D.’s apparent progress and as to his circumstances in light of his mental health challenges. [44] Dr. Rothman expanded on Dr. Jakul’s evidence as to the characteristics of ASD. In his opinion, someone with ASD would beprone to have more difficulty developing peer relations given impairments in communication and inability to adapt. He also testified thatASD impairs one’s ability to regulate emotions. According to Dr.

Rothman, ASD affected persons who are exposed to adverse events inchildhood are vulnerable to additional mental health problems (such as post-traumatic stress disorder) and have a higher probability todevelop conduct problems. [45] Dr. Rothman also observed that there have been recent observations of an overrepresentation of ASD affected individuals thattend to be engaged in sexual offences and pornography use. According to Dr.

Rothman, while persons with ASD continue to developphysically and sexually, their inability to comprehend social situations and develop appropriate intimate relationships leaves them withno sexual outlet. Dr. Rothman suggested that since preoccupation with a special interest is a symptom for ASD affected people, they arevulnerable to become preoccupied with internet pornography given the anonymous nature of internet use in combination with theirsexual development. Dr. Rothman opined that J.E.D. followed this same path and over time developed an interest in child pornography. [46] While Dr.

Rothman acknowledged that research was sparse in respect of this phenomenon, J.E.D. exhibited all of thecharacteristics of ASD consistent with the theory that ASD affected people can be prone to sexual offending. In other words, J.E.D.developed a fixation with pornography due to social isolation.

J.E.D.’s inability to understand how his actions would impact his victims,his propensity to impulsively act on his feelings of sexual arousal, his inability to develop and detect socially acceptable behaviours, hislack of alternative outlets, and his inability to distinguish between appropriate and inappropriate sexual behaviour all contributed to hisoffending path. Lastly, the opportunity to offend arose by virtue of his family circumstances. Dr. Rothman concluded that J.E.D.’s ASDdiagnosis contributed in a substantial way to the offences before the court. [47] The Court accepts the evidence of Dr. Jakul and Dr.

Rothman. Both witnesses provided cogent and thoughtful evidence as toASD generally and to J.E.D.’s circumstances. Both described in great detail how ASD impacts those who have the misfortune to beafflicted with it. It is clear from their evidence that J.E.D. is on the ASD spectrum and that in his case, his ASD played a substantial rolein his offending behaviour. The Court also accepts that J.E.D. is now a moderate-low risk to reoffend, so long as he continues to receivetreatment and supervision.

The Court accepts that J.E.D. is amenable to treatment and has been successfully completing programmingrun by FPS. [48] What role if any, does J.E.D.’s mental health afflictions play in determining a fit and appropriate sentence? Given the evidencebefore the court it is clear that J.E.D.’s mental status warrants significant consideration, as it did in R. v. Adamo, 2013 MBQB 225.

InAdamo, supra., Suche, J. discussed the role of mental health in sentencing at paragraph 29: Mental illness and disability, regardless of whether caused by disease, injury or otherwise, can be either an aggravating or mitigatingfactor in sentencing. As observed in R. v. Cross, [2012] N.J. No. 356 (QL) (N.L.P.C.): [1] Imposing sentence upon an offender who suffers from a mental illness presents difficulties not found in other areas of sentencingand involves a careful judicial balancing of conflicting interests.

The public must be protected, particularly from violent offenders, but anoffender’s mental illness must play an important role in assessing his or [her] moral blameworthiness. If the offender poses a risk to thepublic, then resort to separating the offender from society may be called for despite the existence of a mental illness (see R. v.Desjardins-Paquette, 2012 ONCA 674 and R. v. Virani, 2012 ABCA 155 , [2012] A.J. No. 507 (C.A.), at paragraph16), otherwise restraint should normally dominate the sentencing process for such offenders.

A concentration on treatment throughcommunity intervention should normally prevail over incarceration (see R. v. Lundrigan, 2012 NLCA 43 , [2012] N.J. No. 231(C.A.), at paragraph 20), though less so when serious offences are committed (see R. v. J.M., [2008] N.J. No. 262 (P.C.) and R. v.

Taylor, [2012] N.J. No. 251 (P.C.)). [49] The court in Adamo went on to observe that absent public safety concerns, mental illness is usually a mitigating factor and thatit follows that punishment through deterrence and denunciation are “of little use when dealing with a person who has offended, at least inpart, because of mental illness”. Justice Suche continued the analysis by explaining that those afflicted with mental illness that leads tocriminal behaviour come to the court with reduced moral blameworthiness.

A proportional sentence is one that accords with the degreeof moral blameworthiness of the actor, and “an offender impelled to commit a crime by mental illness is not a free actor” (at paragraph31). [50] This analysis is supported by the Manitoba Court of Appeal in R. v. Friesen, 2016 MBCA 50, where the court confirmed that anoffender’s moral blameworthiness may be reduced if there is a connection between the diagnosis (FASD in that case) and the offence forwhich he is being sentenced. [51] As has been illustrated by Dr. Rothman, J.E.D. has been impelled to commit the present offences by his mental illness.

Inaddition, while he is responsible for his offending, he did attempt to extradite himself from the situation by trying to avoid babysittingaltogether. Unfortunately, J.E.D. simply did not have the mental wherewithal to devise proper strategies to avoid his nieces, nor was heequipped to discuss the problem with his family. [52] At the end of the day, J.E.D.’s ASD is a major mitigating factor in determining the appropriate sentence in this case.

Inaddition, he has no criminal record, he plead guilty and thereby spared the victims from having to testifiy, he has expressed some shameand remorse to the extent he is capable of doing so, and most significantly he has undergone intense and ongoing treatment since theoffences came to light. (

c) Range of Sentences for Sexual Interference [53] It is evident that sentences have been continually increasing for this type of offence. Sexual interference is an offence that hasbeen perpetrated by offenders in varying ways with a wide range of backgrounds and with differing relationships to their victims. Toborrow from Mainella, J. as he then was, in R. v. Storheim, 2014 MBQB 141, in commenting on comparing sentences in sexual offences: Rationalizing the disparities in sentences is folly. There is no such thing as a uniform sentence for a particular crime.

Sentencing is anindividualized process where sentences are tailored to the exigencies of the particular case. As noted in R. v. E.M.W., 2011 NSCA87 , 308 N.S.R. (2d) 15, the range of sentence for the sexual touching of a child, short of oral sex or intercourse, is wide… [54] While all cases have their own features, J.E.D.’s circumstances are particularly unique for the reasons that have already beenexpressed.

In considering the range that applies to J.E.D., it is necessary to emphasize those cases that bear the closest resemblance tothe salient features of J.E.D.’s offending and background circumstances. [55] Several cases were submitted by counsel and discussed in the case law outlining the range of sentences for this offendingbehaviour. The most compelling of these cases, given the facts of the case at bar, are: • R. v. E.R.D.R, 2016 BCSC 684 – The accused was diagnosed as being at level 1 on the ASD spectrum (as is J.E.D.) andcommitted sexual interference by touching his 6-year-old niece’s vagina while babysitting.

The court found that the ASD contributed tothe offence and that the appropriate sentence was between 9 and 18 months. After considering a challenge to the mandatory minimumsentence, the court sentenced the accused to 12 months in jail. • R. v. S.J.P., 2016 NSPC 50 – The accused committed sexual interference against his toddler daughter when he simulatedintercourse on the victim’s diapered vagina on one occasion. The defence challenged the mandatory minimum and the court found that athree to five month range was appropriate for his actions. • R. v. K.(C)., 2016 ONCA 66 , [2016] O.J.

No. 385 – The accused received six months for sexual interference when heentered the room where the victim was watching television and pinned her down and removed her pants and underwear and kissed hervagina, then kissed her breasts and lips. The accused warned the victim to not tell anyone. • R. v. S.(M.D.), [2014] B.C.J. No. 788 – The accused sexually interfered with his girlfriend’s daughters, aged 9 and 12, by touchingtheir genitals. The accused was Aboriginal and there was evidence as to his difficult upbringing before the court. He received aneffective sentence of 1 year. • R. v.

Sawlor, unreported, NSPC – The accused interfered multiple times with his three-year-old granddaughter while babysittingover three months. He rubbed her vagina with his hand. The accused received a four month sentence. • R. v. H.(J.A.), [2011] N.S.J. No. 710 (NSSC) – The accused received six months for sexual interference after getting drunk andputting his hand down the pajamas of his nine-year-old daughter, touching her stomach, thighs and vagina. • R. v. O. J., [2013] N.S.J. No 431 (NSCA) – The accused assaulted his five and nine-year-old granddaughters by touching them invarious settings while caring for them.

He received 90 days on one count and a 6 month conditional sentence order on a second, alongwith 3 years of supervised probation. • R. v. B.(T.M.), 2013 ONSC 4019 – The accused touched his five year old granddaughter. He challenged the minimum

summaryconviction sentence of 14 days. The sentence was reduced from 8 months to 90 days intermittent on appeal. The Court of Appeal agreedthat 8 months was within the proper range for the sentence but that there had been some material changes to the accused circumstances.

• R. v. Webster, 2015 NLPC 1314 – The accused was “involved in a serious attack on [the victim’s] physical and sexual integrity”when he pinned her against the wall and touched her breast and vagina. The victim was assaulted in her work place which was aconvenience store. The accused was mentally unstable and unable to care for himself. The court found that the accused had beenisolated emotionally and sexually and his state of mind at the time, the antecedents for his behaviour were “wrapped in ambiguity”. Mr.Webster was sentenced to two years of probation by way of a suspended sentence.

In determining this sentence, the court referencedSidwell, to support the notion that a sentence must reflect the moral blameworthiness of the offender. • R. v. Klassen, 2014 MBQB 18 – The accused was sentenced to one year for sexually interfering against his 14-year-old niece aftertouching her breast and brushing his hand against her vagina while making sexualized comments to her.

The reviewing court consideredmany similar cases and commented at paragraph 20, “the [reviewed] cases illustrate a range of 90 days to 27 months for the offencesbefore the court”. [56] As stated, the above cases represent a sample of case law that capture similarities in respect of the nature of the acts and in somecases the background of the offender. The range suggested in Klassen, supra. provides a wide range that includes sentences involvingmore serious acts. The facts in the case at bar accord with the lower end of the range suggested in Klassen.

It should be noted that withthe exception of E.R.D.R, supra. and Webster, supra. none of the courts were dealing with accused who suffered from mental illness. InE.R.D.R, the facts were more egregious in that the victim was sleeping and the offence was planned and deliberate, but was only a one-time occurrence. While the court acknowledged the accused’s ASD, only ambiguous passing comment was made regarding theaccused’s moral blameworthiness as the court merely stated that ASD was a “contributing factor”.

In J.E.D.’s case, the extent of the roleof ASD in the offending behaviour was illustrated at great length in the evidence and was connected to the offences. [57] The appropriate range of sentence for J.E.D. spans from probation at the low end to nine months incarceration at the high end,based upon the acts perpetrated and the background of the offender. [58] Given that the appropriate range in this case is below the mandatory minimum, it is necessary to further consider J.E.D.’sapplication pursuant to

section 12 of the Charter. Is the Mandatory Minimum so Excessive as to Outrage the Standards of Decency? [59] The ultimate question to be determined in this case is whether the mandatory minimum sentence set out in

section 151 of theCriminal Code results in a sentence that is grossly disproportionate for J.E.D.. As stated in his case, the effective mandatory minimumsentence is a sentence of two years on account of the necessity of consecutive sentences. As stated already in Sidwell, the Court ofAppeal directed a principled approach to sentencing in child sexual abuse cases. [60] In Sidwell, at paragraph 15, the court commented on the principle of proportionality: A foundational principle of the Canadian sentencing regime is the principle of proportionality. See R. v. Ipeelee, 2012 SCC 13 at para. 37, [2012] 1 S.C.R. 433.

As the Criminal Code (the Code) indicates in s. 718.1, a sentence must be proportionate to the gravityof the offence and the degree of responsibility of the offender. This principle is based upon the fundamental notion that the degree ofpunishment must reflect the gravity of the offence and the moral blameworthiness of the offender. Otherwise, society will have noconfidence in the law or the fairness and rationality of the legal system. [61] In Adamo, the court distilled the factors to be considered as to whether a sentence is grossly disproportionate from R. v. Smith, (SCC), [1987] 1 S.C.R. 1045, and R. v.

Goltz, (SCC), [1991] 3 S.C.R. 485 at paragraphs 83 and 84: • the gravity of the offence; • the personal characteristics of the offender; • the particular circumstances of the case; • the actual effect of the punishment on the offender; • whether the punishment is necessary to achieve a valid penal purpose; • whether the minimum sentence is founded on recognized sentencing principles; • whether valid alternatives to the punishment exist; and • whether comparison with punishments imposed for other crimes in the same jurisdiction reveals great disproportion. [62] Sexual assault against a child is amongst the most grave offences the court must deal with.

Courts and Parliament haverecognized that sentences need to reflect the harm done to society when these offences are committed. Nonetheless, J.E.D.’s offending,though committed repeatedly over a long period of time, is at the lower end of the scale in comparison to sexual interference charges thecourts consider. [63] J.E.D.’s circumstances have been dealt with at length. The present offences occurred largely due to the fact that symptomsassociated with ASD were manifesting themselves in his behaviour. His difficult social background coupled with the opportunity tooffend explain his offences.

He does not think criminally and he is a moderate-low risk to re-offend. [64] Both Dr. Jakul and Dr. Rothman spent considerable time commenting on the impact of the minimum jail time on J.E.D. Both

opined that jail would be detrimental to him for two reasons. [65] Firstly, J.E.D. has been receiving treatment since 2015. He has made strong progress. His treatment is tailored to his needs as apatient on the ASD spectrum. Treatment for J.E.D. is very different from the treatment provided in the jail setting, where J.E.D. wouldparticipate in a group format and would be asked to complete workbook style activities. Given J.E.D.’s anxiety in group settings, thesegroups would likely prove difficult or counterproductive to their goals.

Further, jail programming employs cognitive based therapy,which encourages recognition of problem situations followed by avoidance of those activities. Given the impulsive nature of J.E.D.’sASD symptomology, this approach would be of limited value. [66] Secondly, J.E.D. was observed by Dr. Jakul as socially awkward and naïve. Both doctors expressed a concern that he would bevulnerable to influences or to being taken advantage of by other inmates within the institutional setting. Accordingly, these negativeimpacts would create a more difficult and hostile environment for J.E.D. than other offenders.

Accordingly, the impact of a lengthy jailsentence would likely result in greater social isolation and ineffective rehabilitation. [67] The mandatory minimum sentence for sexual interference is intended to achieve deterrence and denunciation and protection ofthe public. While mandatory jail time undoubtedly denounces the unlawful conduct and can serve as a message of general deterrence,these principles are less important in cases involving the mentally ill who appear with reduced moral blameworthiness as does J.E.D.

Itis clear that specific deterrence is no more achieved through more jail than it has been through education and treatment specialized to hisneeds. Further, it seems that protection of the public is also more likely achieved with this offender by virtue of proper treatment. [68] While a valid compromise to the mandatory minimum one year sentence would theoretically be accomplished through a jailsentence in the community, such sentences are no longer available.

It is noteworthy that case law predating the preclusion of aconditional sentence order for this offence did balance deterrence and denunciation and rehabilitation through the regular use ofconditional sentences. [69] At the end of the day, based upon the factors to be considered, J.E.D.’s unique background, and in light of the fact that the courtis required to impose consecutive sentences such that the mandatory minimum is an effective sentence of two years in his case, the Courtfinds that

section 151 of the Criminal Code breaches

section 12 of the Charter. [70] Given this finding the Court will not engage in considering the applicability of reasonable hypotheticals. Does

Section 151 Breach

Section 15 of the Charter? [71] J.E.D. has also challenged

section 151 of the Criminal Code on the basis that it infringes on his right to equality as guaranteedby

section 15 of the Charter: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law withoutdiscrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental orphysical disability. J.E.D.’s position is that while

section 151 is not discriminatory on its face, the

section operates to create a disadvantage to him. Heargues that the impact of the mandatory minimum is disproportionately negative because the sentence mandates a one year minimumdespite his reduced moral blameworthiness. This, according to J.E.D., results in discrimination because those with ASD have a pre-existing disadvantage that is perpetuated by the fact that a custodial setting is non-responsive to their needs. [72] The Crown argues that J.E.D.’s position is the same argument as the

section 12 argument, but does not properly fit within thesection 15 framework. [73] The test for a determination as to whether one’s equality rights have been breached is well established and can be traced back tothe cases of R. v. Kapp, 2008 SCC 41 , [2008] 2 S.C.R. 483 (S.C.C.), and Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396 (S.C.C.). There are two considerations to be made under the so-called Kapp-Withler test: 1. Does the law create a distinction based upon an enumerated or analogous ground? 2.

Does the distinction create a disadvantage by perpetuating prejudice or false stereotyping? This test has been adopted in subsequent cases (see Quebec (Attorney General) v. A., 2013 SCC 5), and should be applied here. Does the law create a distinction based upon an enumerated or analogous ground? [74] The wording of

section 151 of the Criminal Code does not explicitly identify or distinguish any particular group. All offendersare subject to a minimum of one year in jail where the Crown proceeds by indictment. However, a court can find a breach of

section 15of the Charter where identical treatment creates inequality. In order to make this determination, the Court must find that the law, in thiscase

section 151, has a “disproportionately negative impact” on the identified group of people, in this case, people on the ASD spectrum(see Withler, supra.). [75] The Crown urges the Court to apply R. v. B.(T.M.), 2013 ONSC 4019, where Code, J. declined to find that

section 151 of theCode breaches

section 15 of the Charter. The rationale applied to B.(T.M.), supra. was that there was no disproportionately negativeimpact caused by

section 151 because the Crown in that case had proceeded by way of

summary conviction and the mandatoryminimum was 45 days in jail. The sentencing judge had determined that the appropriate sentence was 8 months (see paragraph 32). Interestingly, the court went on to comment that the accused in that case presented with an absence of “the kind of exceptionalcircumstances that are seen in those rare cases where conditional sentences have been imposed and upheld for breach of trust sexualassaults committed against children”. More will be said about this in due course.

[76] In the present case, the range has been established as being between probation and nine months in jail, but for the mandatoryminimum. Similarly to B.(T.M.), a conditional sentence would not be applicable but for the mandatory minimum, but in this case it isbecause

section 742.1(

c) precludes such an order where the maximum available sentence is 14 years, as it is here. That provision has notbeen challenged in this case. However, the range established does not preclude that probation be imposed upon J.E.D. [77] The picture that emerges is that those who are on the ASD spectrum such as J.E.D., who have committed sexual interference asa result of the characteristics of ASD may be disproportionately adversely affected by the minimum sentence. Not all people on theASD spectrum commit sexual assault. It is clear that this fact is not a bar to a

section 15 remedy (see Rodriquez v. British Columbia(Attorney General), (SCC), [1993] 3 S.C.R. 519 (S.C.C.)). However, if the inverse is true, that there are people whosuffer from ASD, but are not disproportionately impacted by the mandatory minimum, it seems that it cannot be said that there is adistinction based upon an enumerated ground (mental illness). In other words, in order to find a

section 15 breach, the Court must besatisfied that all offenders on the ASD spectrum have reduced moral blameworthiness. No such evidence has been placed before thecourt. Autism Spectrum is just that: a spectrum. It is clear from the evidence of Dr. Jakul and Dr. Rothman that people who are on thespectrum may experience symptomology at different levels. Not all characteristics are present in every ASD affected person. Withoutfurther evidence as to the impact of ASD on moral blameworthiness generally, the Court is not able to conclude that there is a

section 15breach. Does the distinction create a disadvantage by perpetuating prejudice or false stereotyping? [78] Since the Court is not satisfied that a distinction has been established on an enumerated ground, there is no need to consider thesecond question. Does

Section 151 of the Criminal Code Breach

Section 9 of the Charter? [79] J.E.D. further argues that his right not to be arbitrarily detained or imprisoned pursuant to

section 9 of the Charter has beeninfringed by the imposition of the mandatory minimum set out in

section 151. [80] J.E.D. says that

section 151 of the Criminal Code is arbitrary since sexual interference is a hybrid offence, the Crown has thediscretion to proceed by

summary conviction or by indictment, and the difference between the respective mandatory minimum sentencesbetween

summary and indictable proceedings for this offence is nine months. [81] The Crown responds that the decision on how to proceed is a function of prosecutorial discretion, and while the respectiveresults would be different as between an indictable proceeding and a

summary conviction proceeding, this fact does not mean that thelaw is arbitrary. [82] Prosecutorial discretion has long been recognized. The decision as to whether to proceed by

summary conviction or indictmentwas affirmed as a matter of prosecutorial discretion in R. v. Anderson, 2014 SCC 41. In Anderson, supra. the court also maintained thatprosecutorial discretion is not reviewable absent an allegation of abuse of process (see paragraphs 37 – 44). However, this fact does notentirely assist in deciding whether the mandatory minimum is arbitrary. In Anderson, the Supreme Court was careful to distinguishbetween issues that are concerns of the court (i.e. Gladue factors) versus issues that are within the realm of concerns of the Crown.

While the Crown is entitled to prosecutorial discretion and must allow the public interest to dictate its actions, it is up to the court tobalance the concerns of the Crown against the concerns of the individual offender. It may be that an arbitrary detention results when theconcerns of the offender are considered along with the public interest. This

interpretation is consistent with the court’s comments in R.v. Nur, 2015 SCC 15, at paragraphs 87 to 91, where Chief Judge McLachlin references the distinctive roles of the Crown and the courtas referenced in Anderson, and concludes it would be inappropriate to rely upon prosecutorial discretion to ensure constitutionaladherence in individual cases. [83] Unlike the

section 15 analysis, where the court is required to consider the impact of the minimum sentence on an entire group ofpeople, an analysis pursuant to

section 9 requires the court to determine whether the mandatory minimum creates an arbitrary detentionfor J.E.D. specifically. [84] The inescapable conclusion based upon the appropriate range of sentences articulated already, is that the mandatory minimumdoes infringe upon J.E.D.’s

section 9 right against arbitrary detention. Given J.E.D.’s reduced moral blameworthiness, less emphasisshould be placed upon deterrence and denunciation. In addition, a lengthy custodial sentence will result in a detriment in J.E.D.’srehabilitation, given the lack of appropriate resources to provide meaningful treatment. Public protection is not enhanced by J.E.D.’scontinued incarceration. In light of this, it is difficult to rationalize a lengthy jail sentence. Therefore, incarceration for a minimum ofone year is arbitrary by definition. Accordingly, the Court finds that J.E.D.’s

section 9 Charter right against arbitrary detention isinfringed by the one year minimum set out in

section 151 of the Criminal Code. Are the Breaches of the Charter Justified? [85] Since the Court has determined that J.E.D.’s Charter rights pursuant to

section 12 and

section 9 have been breached, it isnecessary to consider whether the mandatory sentence of one year can be saved pursuant to

section 1 of the Charter. [86] In light of the breaches that have now been established, it is common ground that the onus is on the Crown to establish that theviolation of J.E.D.’s Charter rights is justified in a free and democratic society. [87] The Court is to apply the “Oakes test” in considering whether the breaches are justified (see R. v. Oakes, (SCC), [1986] 1 S.C.R. 103 (S.C.C.). In this case the Court must consider: 1. Does

section 151 of the Criminal Code address a pressing and substantial legislative objective? 2. Is the mandatory minimum rationally connected to that objective?

3. Does the mandatory minimum minimally impair the rights that have been infringed? 4. Is there proportionality between the impact of the minimum sentence on J.E.D. and the benefit to the greater public good achieved by the minimum? Pressing and Substantial Legislative Objective and Rational Connection to the Intended Objective [ 88 ] It is clear that since at least the early 2000’s, Parliament has set out to combat sexual offending that victimizes children. The Court has already outlined that there has been several amendments to various sections of the Criminal Code that have been aimed at that purpose.

These changes reflect the desire to reinforce the necessity to impose sentences that are focused on deterrence and denunciation. It is equally clear that the courts across the country have responded by incrementally increasing sentences in this regard and focusing on those principles of sentencing. [ 89 ] There is no question that implementation of minimum sentences results in increased jail sentences. The connection between minimums, focus on deterrence and denunciation and longer jail sentences is clear.

Minimal Impairment [ 90 ] As alluded to previously, sexual interference is an offence that has been perpetrated by offenders in varying ways with a wide range of backgrounds and with differing relationships to their victims. It follows that each offender will have their own level of moral blameworthiness. [ 91 ] The Court has already determined that it is inappropriate to delegate the determination as to the extent of minimum punishment through the election process. The court in Adamo concurred with this analysis (see paragraph 155).

In this case, through several days of court time and volumes of material, the Court has determined that J.E.D. rests on the low level of moral blameworthiness. In his case, the imposition of consecutive minimum sentences does not minimally impair his rights, rather, as already determined, is grossly disproportionate. Proportionality [ 92 ] In the Court’s view, the severity of the impact to J.E.D. is not proportionate to the salutary effect of

section 151 of the Criminal Code . On one hand, J.E.D. faces a particularly difficult lengthy jail sentence where there is a real risk of victimization of him due to vulnerabilities associated with his ASD. At the same time, he stands to gain little rehabilitation. On the other hand, while the minimum sentence arguably sends a strong message to the community that sex offenders of all backgrounds will be punished, J.E.D. will not likely leave jail specifically deterred any more than he already is.

Further, given the nature of ASD, or even other forms of mental illness, it is highly unlikely that others who are similarly situated will take notice of J.E.D.’s sentence and be deterred from offending themselves. Simply put, J.E.D. is not the offender that should be used as an example for his actions. [ 93 ] At the end of the day, balancing all of the factors required by Oakes , supra . the mandatory minimum sentence of one year is not justified in the case of J.E.D., and therefore will not apply for the case at bar.

What is the Appropriate Sentence for J.E.D.? [ 94 ] There is an obvious emphasis placed upon the principles of deterrence and denunciation in sentencing offenders who have victimized children sexually.

Section 718 requires that primary consideration be given to objectives of deterrence and denunciation when a person under 18 has been abused.

Section 718.2(a)(ii.1) and (iii) refer to abuse of a child under 18 years of age, when in a position of trust are deemed to be aggravating factors in sentencing. Further, the case law supports a jail sentence for J.E.D., who is a first time offender. [ 95 ] At the same time, for the reasons stated, mental illness represents a major contributing factor to J.E.D.’s offending. In such circumstances, where moral blameworthiness is diminished, principles of deterrence and denunciation are to be afforded less weight in the sentencing process (see for example: Adamo , R. v. Ayorech , 2012 ABCA 82 , R . v.

Friesen , 2016 MBCA 50 , R. v. Kagan , 2008 NSSC 26 , R. v. Somogyi , 2011 ONSC 483 ). [ 96 ] The Court is therefore left with a conflict in applying the principles of sentencing between emphasizing deterrence and denunciation in sentencing for sexual offences against children versus placing less weight on these principles on account of reduced moral blameworthiness due to mental illness. [ 97 ] How does the court reconcile these apparently irreconcilable differences?

The decision in Sidwell serves as a reminder that sentencing is in fact specific, and that an appropriate sentence responds to the conduct of the offender and the aggravating and mitigating circumstances. The Supreme Court in R . v. Nasogaluak , 2010 SCC 6 (at paragraph 44 ) also referenced the balancing act that is to be accomplished in sentencing: The wide discretion granted to sentencing judges has limits.

It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code . But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing.

Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. Suffice it to say, sentencing is an individualized process. [ 98 ] Departure from sentencing ranges, or sentences that are on the low end of sentencing ranges, have been justified in the past. As

indicated already, in B.(T.M.) , the court referenced a period before legislative change where conditional sentences were imposed “and upheld for breach of trust sexual assaults committed against children” in exceptional circumstances. The Manitoba Court of Appeal considered the concept of “exceptional circumstances” in a case of possession of cocaine for the purpose of trafficking called R. v. Tran , 2015 MBCA 120 . The court in Tran , supra . declined to precisely define “exceptional circumstances” but instead opted to direct that courts examine the totality of the circumstances.

In particular, the court listed several considerations that included: whether there are multiple mitigating factors, whether “incarceration, due to substantial rehabilitation coupled with the length of time since sentencing would be counterproductive”, health issues and personal characteristics, amongst other persuasive factors compelling an exceptional sentence. [ 99 ] The case at bar features unique circumstances. J.E.D. has no criminal record.

He has a very difficult background related to poor mental and physical health and punctuated by traumatic experiences at home and in the very little social environments that he has been in. He is a vulnerable person that is on the ASD spectrum and whose dysfunctional family situation and mental health condition contributed to his offences. He is remorseful and importantly has been in ongoing treatment that is specific to his needs and he is making progress such that his risk of reoffending is limited. Incarceration would impede his rehabilitation and leave him vulnerable to victimization.

The little information regarding victim impact suggests that family reunification is desired at some point. Accordingly, the totality of the circumstances qualify as “exceptional circumstances” that justify a departure from a sentence that focuses on deterrence and denunciation. [ 100 ] The Court must impose consecutive sentences. The count of sexual interference against A.P. is the most aggravating offence in light of the duration that the offence covers. Based upon all of the circumstances, the appropriate sentence is four months in jail plus three years of supervised probation.

The count of sexual interference against S.L. is less serious in that it occurred over a lesser period of time. The appropriate sentence for the count against S.L. is three months jail plus three years of supervised probation. [ 101 ] The Court is required to take a “last look” in light of the fact that consecutive sentences are being imposed. In R. v. G.J.M ., 2015 MBCA 103 , the court discussed the factors to be considered in taking a “last look” (see paragraph 10).

Part of the court’s consideration includes a consideration of the impact of the offender’s prospects for rehabilitation and proportionality in light of the offender’s degree of responsibility. Accordingly, the “last look” principle directs the court to consider the aforementioned “exceptional circumstances”. [ 102 ] In the present case, the “last look” allows the Court to balance the seeming incongruent principles of deterrence and denunciation with rehabilitation.

In doing so, it is necessary to reduce each of the counts to allow for a rehabilitative sentence, but account for the victimization of both A.P. and S.L. Therefore, the sentence will be reduced as follows: 1. Sexual interference against A.P. – four months – reduced to two months for totality. 2. Sexual interference against S.L. – three months – reduced to one months for totality. [ 103 ] Therefore the total jail portion of the sentence will be three months.

In light of the duration of the sentence, J.E.D. is eligible to serve his sentence intermittently, which will be allowed. [ 104 ] In addition, J.E.D. will be serving three years of supervised probation which will be concurrent on both counts. The conditions of that order will be determined after hearing submissions of counsel. [ 105 ] There are several ancillary orders that will also be imposed: • The offences are primary designated offences within

section 487.051 of the Criminal Code . Therefore, J.E.D. will submit to the authorities upon their request to submit to the taking of a sample of his DNA. • Pursuant to

section 109 of the Criminal Code , there will be a 10 year weapons prohibition. • Pursuant to

section 490.013(21) of the Criminal Code , there will be a lifetime order in accordance with the Sex Offender Information Registration Act . • Pursuant to

section 161 of the Criminal Code , there will be an order for a period of 10 years, the conditions of which will be determined after submissions of counsel. • There will be an order of costs and surcharges amounting to $404.00. “Original signed by:” Rolston, P.J.