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SENTENCING - Sexual offences - Aboriginal offenders

Tuesday, May 28, 2019 @ 8:49 AM  

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Appeal by accused from sentence of 15 months’ imprisonment and two years’ probation for sexual exploitation. The complainant was the appellant’s 17-year-old niece, who was in his family’s safekeeping because she was struggling with difficult life challenges. The appellant engaged in sexual intercourse with her several times. The appellant challenged the constitutionality of the minimum one-year sentence in s. 153(1.1)(a) of the Criminal Code.  A sentencing circle took place in 2018. The sentencing circle was attended almost entirely by the appellant’s friends and relatives. The victim did not attend. There was considerable victim blaming among the participants. The circle recommended that the appellant take part in a community plan that did not involve jail. No one saw imprisonment as a fit sentence other than the Crown. The appellant was at low risk to reoffend and had no other criminal record. The judge gave the sentencing circle’s recommendation little to no weight. He considered the significant age difference between the appellant and the victim, that he abused his position of trust in relation to the vulnerable victim, and that the abuse continued over a month-long period and ended only when discovered.

HELD: Appeal dismissed. The mandatory minimum sentence was unconstitutional. The offence was drafted broadly enough to capture offenders for whom a one-year sentence would be grossly disproportionate. Although the offence existed to regulate the behaviour of responsible adults, the mandatory minimum sentence did not sufficiently account for the variety of ways in which an adult might fail to meet their duty to young people. It was not an error for the judge to give the sentencing circle’s recommendation the minimal weight he did since it was an unsatisfactory process in this case. There was no basis upon which to substitute another view for that of the sentencing judge with respect to sentence. He committed no material errors, nor was the sentence he imposed demonstrably unfit. The weapons prohibition was properly made, including the exemption for sustenance hunting and trapping purposes. When the sexual integrity of a child was violated, that was sufficient violence to attract the prohibition order. Sentence: 15 months’ imprisonment; two years’ probation; weapons prohibition.

R. v. E.O., [2019] Y.J. No. 37, Yukon Territory Court of Appeal, M.E. Saunders, E.A. Bennett and P.M. Willcock JJ.A., April 18, 2019. Digest No. TLD-May272019004