A Yukon Supreme Court judge has struck down the mandatory minimum sentence for offenders convicted of sexually assaulting victims under the age of 16, finding the minimum of one year’s imprisonment unconstitutional.
Deputy Justice Bonnie Tulloch made the declaration in the course of sentencing a man found guilty by a jury earlier this year of sexually assaulting a then-14-year-old girl in Whitehorse in 2018.
Both the offender and victim’s names are covered by a publication ban.
In her reasons for sentencing, delivered orally but also provided in written form on May 28, Tulloch noted that the Crown had requested a sentence of 15 to 16 months in jail, while the defence sought a suspended sentence.
The defence also sought a declaration that the minimum sentence of one year’s imprisonment for the sexually assault of a person under 16 years old violates section 12 of the Canadian Charter of Rights and Freedoms, which prohibits “cruel and unusual treatment or punishment.”
Tulloch ultimately found that the man deserved a year-long jail sentence followed by 12 months’ probation based on the facts of the case, regardless of the mandatory minimum.
“In this case, (the man’s) actions are very serious as they involve sexual activity with a minor,” Tulloch said. “He had a responsibility to know how old (the victim) was before he touched her in the manner he did. His degree of responsibility was very high as his actions significantly violated (the victim’s) privacy and her sexual integrity.”
The man “took no steps” to verify the victim’s age, Tulloch said, “in spite of the fact that there were a number of things that should have alerted him to the danger that (the victim) was likely under the age of 16,” including the fact that he knew she was in school and that an adult controlled her bedtime and internet access.
“It is particularly aggravating that (the man) did not understand that ‘no means no,’” Tulloch added, noting that the victim, who had met the man on social media, had texted him, “Nothing sexual, okay?” before they met and had repeatedly said “no” when he began to touch her.
On the mitigating side, Tulloch said the man appeared to be genuinely remorseful, had no prior criminal record, had complied with his bail conditions, had the support of his landlord and was at low risk to reoffend.
While it wasn’t unconstitutional to give the man a year-long sentence in this case though, Tulloch said she felt “required to consider” whether the mandatory minimum “would result in cruel and unusual punishment” for other offenders found guilty of sexually assaulting children under 16.
She cited three separate cases, including two recent decisions from the Yukon and one from the British Columbia Court of Appeal, that found the mandatory minimum sentence for the crime of sexual interference in violation of the Charter.
Tulloch also said she looked specifically at Yukon cases involving convictions of sexual interference or sexual assault of a person under 16 and found that, after reviewing 25 cases, the appropriate sentencing range in the territory ranged from six to 27 months in jail.
She found that offenders come from a “very broad and diverse background,” and based on their personal circumstances, as well as the circumstances of their crimes, a one-year sentence may not always be fair — for example, in the case of an offender who has a mental disability.
“Offenders suffering from extreme fetal alcohol spectrum disorder is just one type of person whereby mandatory minimum penalty may or may not be appropriate, given the specific circumstances of the offences and the offender,” Tulloch said.
“In conclusion, I declare that the mandatory minimum of one year’s imprisonment is of no force and effect based on a reasonable foreseeable hypothetical.”
Contact Jackie Hong at firstname.lastname@example.org