The Yukon Court of Appeal recently struck down the mandatory minimum sentence of one yearճ imprisonment for a conviction of sexual exploitation, deeming it unconstitutional. (Crystal Schick/Yukon News file)

Yukon Court of Appeal strikes down mandatory minimum sentence for sexual exploitation

The charge “is drafted broadly enough to capture offenders for whom a one-year sentence would be grossly disproportionate”

The Yukon Court of Appeal has struck down the mandatory minimum sentence of one year’s imprisonment that comes with a conviction of sexual exploitation, deeming it in violation of the Canadian Charter of Rights and Freedoms.

Yukon Court of Appeal Justice Elizabeth Bennett, supported by Justices Mary Saunders and Peter Willcock, made the finding in a decision released April 18, declaring the mandatory minimum sentence “to be of no force and effect.”

The declaration was spurred by the appeal of a Yukon man who pleaded guilty in 2018 to sexually exploiting his then-17-year-old niece over the course of about a month in 2015.

The man’s name, as well as the name of the victim, are protected by a publication ban. He is identified only as “E.O.” in the decision.

The Criminal Code defines sexual exploitation as a crime where a person in a position of authority or trust touches a young person, or “invites, counsels or incites” the young person to touch anyone, for a sexual purpose.

Yukon territorial court judge Peter Chisholm sentenced E.O. last June to 15 months in jail, followed by two years of probation.

At sentencing, E.O.’s lawyer had suggested he deserved a conditional sentence. However, under the law, conditional sentences cannot be handed down for crimes with mandatory minimum sentences.

E.O.’s lawyer had invited Chisholm to examine the constitutionality of the mandatory minimum sentence associated with a conviction of sexual exploitation.

Chisholm declined, stating that a conditional sentence wasn’t appropriate in E.O.’s case anyway.

On appeal, E.O. argued that Chisholm had failed to give proper weight to a sentencing circle held in E.O.’s home community (the circle had also recommended a conditional sentence). He asked for the court to both strike down the mandatory minimum, convert his sentence to a conditional one, and to set aside the weapons prohibition term.

Bennett dismissed the majority of E.O.’s appeal, finding that Chisholm had arrived at a proper sentence for E.O. Among other things, she wrote, Chisholm had correctly identified that E.O.’s “moral culpability” for the crime was high — the victim was a vulnerable young adult under his care — and as such, deserved a stricter sentence.

Chisholm was also justified in not giving significant weight to the sentencing circle’s recommendation, Bennett found, as the circle “was attended almost entirely by friends and relatives” of E.O., “there was considerable victim blaming among the participants” and the victim had no involvement in the process, other than the reading of a letter she had written a year prior.

“There is no doubt that the participants of the circle were well meaning, and did their best in the circumstances. It was, however, an unsatisfactory process … There were very few at this circle who represented voices other than those supporting [E.O.],” Bennett wrote.

Bennett also dismissed E.O.’s appeal of the weapons prohibition, noting that Chisholm had made an exemption for a firearm used for sustenance hunting and trapping.

However, more than a quarter of the 22-page decision was dedicated to examining whether the mandatory minimum sentence for sexual exploitation was constitutional.

A mandatory minimum didn’t exist for the charge up until 2005, Bennett notes, when the Criminal Code was amended to introduce a minimum sentence of 45 days where the Crown proceeded by indictment and 14 days where the Crown proceeded summarily.

Those minimums increased to one year or 90 days, respectively, in 2012.

Last year, though, the Nova Scotia Court of Appeal struck down the one-year minimum, Bennett continued, posing a “reasonable hypothetical” of when a person convicted of sexual exploitation would not deserve that sentence.

The hypothetical, with elements drawn from real cases, was of “a new teacher in her 20s with bipolar disorder … who texts a 17-year-old student about a school assignment. They meet and she touches the student sexually during a manic episode.”

The Nova Scotia Court of Appeal found that “such an act would seldom draw a term in prison, and that a one-year sentence would be grossly disproportionate, amounting to cruel and unusual punishment,” Bennett wrote.

“Cruel and unusual punishment” is a violation of section 12 of the Charter.

Although Alberta’s court of appeal upheld the mandatory minimum when it was faced with its own challenge, finding the Nova Scotia court’s hypothetical “too far-fetched,” Bennett wrote that she found it “reasonable.”

“It demonstrates that the offence is drafted broadly enough to capture offenders for whom a one-year sentence would be grossly disproportionate … Although the offence exists to regulate the behaviour of responsible adults, the mandatory minimum sentence does not sufficiently account for the variety of ways in which an adult may fail to meet their duty to young people,” Bennett wrote.

“For that reason, it is unconstitutional … In conclusion, I would declare the mandatory minimum of one year’s imprisonment to be of no force and effect. I would otherwise dismiss the appeal.”

Contact Jackie Hong at jackie.hong@yukon-news.com

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