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SENTENCING - Sexual assault - Aboriginal offenders - No previous record

Friday, September 06, 2019 @ 6:33 AM  


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Sentencing of the 24-year-old Indigenous offender found guilty of party to sexual assault, sexual assault and sexual interference. The Crown stayed the sexual assault and sexual interference charges. The offender and her co-accused sexually assaulted the 14-year-old complainant, who fell asleep at their residence after drinking alcohol. The offender held the complainant’s legs while the co-accused had sexual intercourse with the complainant and engaged in oral sex and digital penetration on the complainant. The offender’s co-accused, who pled guilty to sexual interference, was sentenced to four years’ imprisonment. The offender had no previous criminal record. Her relationship with the co-accused was marked by substance abuse and domestic violence. She did not graduate from high school and had a limited employment history.

HELD: The offender was sentenced to one year and two and a half months’ imprisonment. The mandatory minimum sentence of five years for being a party to a sexual assault was cruel and unusual punishment and in breach s. 12 of the Canadian Charter of Rights and Freedoms. Section 272(2)(a.2) of the Criminal Code made no distinction based on the gravity of the assault and could result in a grossly disproportionate sentence. The mandatory minimum was unconstitutional. The offender was an active participant in a major sexual assault. The power imbalance in the relationship between the offender and the co-accused made it unfair to infer that the offender was a full and willing participant. The offender’s Gladue factors were profoundly significant. Her moral blameworthiness did not fairly equate to the co-accused’s. A fit and appropriate sentence, in absence of the mandatory minimum, was 32 months’ imprisonment, less 532 days for time served. Sentence: One year and two and a half months’ imprisonment; DNA order; 20-year SOIRA order; firearms prohibition; non-contact order.

R. v. Badger, [2019] A.J. No. 973, Alberta Court of Queen's Bench, S.D. Hillier J., July 22, 2019. Digest No. TLD-September22019012