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SENTENCING - Sexual interference - Sexual assault - Particular sanctions

Monday, May 06, 2019 @ 9:09 AM  

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Determination of which offence TQ should be sentenced for. TQ pleaded guilty to sexual interference and sexual assault. While staying at his sister-in-law’s house, TQ put his hand under his 14-year-old niece’s shirt and felt her breasts. He then moved his hand down towards her genital area. When the victim resisted and went downstairs, TQ followed her and repeated the same behaviour. The victim informed TQ’s wife. The Crown and the Defence agreed that the Kienapple rule applied and that a conviction could be entered on only one of the two charges.

HELD: TQ was sentenced to 90 days’ imprisonment and one year’s probation for the offence of sexual interference. The Kienapple rule stated that the conviction had to be entered on the more serious of the two charges. If the question of severity was gauged only by reference to the penalty sections, the sexual assault was the more serious of the two offences. However, the Kienapple rule had to be applied on a more principled basis which took into account the specificity and insidious nature of the crimes involved, as well as the impact of the conviction upon the individual offender. The offence of sexual interference best captured the nature of what the defendant had done and was a more precise description of the crime committed. A conviction for the more generic offence of sexual assault told the public nothing about the age of the victim or even the fact that the offender had committed a crime against a child. In terms of the long-term impact on the offender, having a criminal record for sexual interference carried a much greater societal stigma than having a record for sexual assault. Accordingly, a stay of proceedings was entered on the charge of sexual assault. Sentence: 90 days’ imprisonment; one year’s probation -- Criminal Code, s. 151.

R. v. T.Q., [2019] Nu.J. No. 6, Nunavut Court of Justice, N. Sharkey J., April 3, 2019. Digest No. TLD-May62019001