A recent Superior Court decision in Ottawa (in a case conducted by Bayne Sellar Boxall partner Mark Ertel) is a good example of how the analysis of mandatory minimum sentences plays out in Court [R. v. Laviolette, 2016 ONSC 782]. In that case, the offender was found guilty of touching a 15 year old girl for a sexual purpose. Section 151 of the Criminal Code prohibits that conduct. It is commonly known as “sexual interference.” Sexual interference covers a very wide range of conduct. In some cases sentences traditionally ranged from 0-90 days for less invasive, fleeting touching whereas lengthy penitentiary terms of 5 years and even more were imposed in more serious cases where the conduct was more intrusive and/or happens repeatedly over an extended period of time.
The Trial Judge in Laviolette decided that an appropriate jail sentence for the offender would be in the range of 9 months. While the mandatory minimum sentence of 12 months was disproportionate, the trial judge found that it was not grossly disproportionate. The Judge went on to find, however, that similar cases might attract jail sentences in the 60-90 day range. Those similar, decided cases were reasonable hypotheticals and the difference between 60-90 days and one year is grossly disproportionate.
The Crown argued that the mandatory minimum sentence was a reasonable limit. Reasonable limits require “proportionality.” It is hard to imagine how a provision found to be grossly disproportionate could be found to nevertheless be proportionate. The Judge found that he mandatory minimum sentence could not survive the constitutional attack and that the offender should be sentenced according to established sentencing principles.
The Trudeau government is reviewing all of the “tough on crime” legislation of the Harper government. Hopefully some or all of the mandatory minimum sentences will be repealed. They are, without question, vulnerable to constitutional attack, at great expense to the offender who challenges them and to the administration of justice, which has many other important matters to decide in the very scarce court time that is available.