Invitation to Sexual Touching Mandatory Minimum Struck Down

In a recent case in the Ontario Superior Court of Justice, R. v. Hussein, the accused brought an application to have the mandatory minimum sentence for the offences of invitation to sexual touching, sexual interference and sexual assault of one year in jail struck down as unconstitutional. Section 12 of the Charter of Rights ensures that “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”

The three offences at issue in the case all carry one year mandatory minimum sentences. Sexual assault, sexual interference, and invitation to sexual touching were all amended in 2012 to provide for a one year minimum sentence when the Crown proceeds by indictment and when the complainant is under age 16. The previous mandatory minimum for sexual interference and invitation to sexual touching was 45 days, when proceeding by indictment. There was no mandatory minimum for sexual assault prior to 2012. See: sections 271, 151, and 152 of the Criminal Code.

The trial judge noted that three other judges of the Ontario Superior Court had struck down two of these mandatory minimum sentences (sexual interference and sexual assault) on the basis that they violate s. 12 of the Charter of Rights and Freedoms. One of those cases had been argued by Bayne Sellar Ertel Carter partner Mark Ertel. In following the other decisions, Justice Code noted that that decisions by a judge of this Court should generally be followed by other judges of this Court. He also noted that he agreed with the decisions of his colleagues. As a result, the mandatory minimum sentence for invitation to sexual touching has now also been struck down as unconstitutional.


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