The Yukon Supreme Court has revised the sentences in two cases, finding in both that conditional sentences are not suitable when children are the victims of sexual interference from adults. In both cases the judge also found that the minimum sentences set out for sexual interference by the Criminal Code are unconstitutional.
Two court judgements, both ruled on by Justice Karen Wenckebach, were passed down on Nov. 25. Due to their close relationships with their victims, both of the offenders’ names are made anonymous in court documents. One of the offences took place in 2018 and the date of the other is not specified in the documents.
One of the cases deals with the recreation director of an anonymous community who was found guilty of kissing, touching and making inappropriate sexual comments to a 17-year-old employee.
At the sentencing hearing, the convicted man challenged the constitutionality of the mandatory minimum sentence, submitting that it violates section 12 of the Canadian Charter of Rights and Freedoms, the portion that guards Canadians from cruel and unusual punishment. He sought that the minimum sentence not be applied to him, and sought a 6-month conditional sentence order meaning that the sentence would be served in the community not in jail.
The Crown sought a 90-day jail sentence and argued that the mandatory minimums are constitutionally compliant.
The lower court judge concluded that the provision requiring minimum sentences was not constitutional and imposed a six-month conditional sentence with a further two years of probation.
The Crown appealed this ruling seeking a 90-day imprisonment. Wenckebach found this a proportional sentence and said a conditional sentence is not appropriate. The crown submits that given the nature of sexual offences against children and the moral blameworthiness of the offender, the conditional sentence shouldn’t have been granted.
Driven by case law saying that conditional sentences shouldn’t be considered presumptively inappropriate, Wenckebach found that this case had very different facts than the one the initial judge ruled on. Aggravating factors include the vast age difference between perpetrator and victim and the position of authority in play.
The supreme court decided there are reasonable hypothetical situations where the 90-day minimum sentence wouldn’t be appropriate.
Wenckebach approved the appeal, setting aside the conditional sentence and replacing it with a 90-day jail sentence that is deemed served at this point. Her ruling also finds that the mandatory minimum sentence is invalid and of no force or effect.
The other appeal Wenckebach passed judgement on Nov. 25 dealt with a sexual interference case in which the 28-year-old perpetrator plead guilty to sexually interfering with his 15-year-old cousin.
Similarly to the other case, the convicted person challenged the constitutionality of the minimum sentencing provisions and sought a 9-month conditional sentence while the Crown wanted a four-month jail term. The cCown sought a four-month jail term and argued that the mandatory minimum complied with the constitution.
The trial judge agreed that the minimum sentence provisions breached the man’s charter rights and imposed a 6-month conditional sentence and more than a year of probation. The Crown also appealed this finding, again seeking a 90-day jail term.
Wenckebach reached the same conclusion as the other case, substituting the conditional sentence for the 90-day jail term which is also to be deemed served.
Contact Jim Elliot at jim.elliot@yukon-news.com
