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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Protection against cruel and unusual punishment

Wednesday, March 14, 2018 @ 8:40 AM  


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Appeal by the Crown from the sentence imposed on the accused for sexual offences involving the accused’s former students; appeal by the accused from conviction of the offences. The appellant suffered from Bipolar Mood Disorder. Forensic psychiatrists had opined that the appellant’s condition rendered the appellant not criminally responsible for the offences she committed while ill. The Crown’s forensic psychiatrist said it did not. The trial judge preferred the Crown’s psychiatrist’s opinion and convicted the appellant. The judge struck down as unconstitutional the mandatory minimum penalties that mandated incarceration and imposed a 15-month conditional sentence, two years’ probation and various ancillary orders. On appeal, the Crown argued the trial judge wrongly found the mandatory minimum punishments were unconstitutional and that the conditional sentence imposed was legally unavailable, or otherwise inadequate. The appellant advanced four grounds on her conviction appeal, namely, that the trial judge’s reasons reflected reversible error by requiring the appellant to testify, misapprehending or ignoring the expert and lay evidence the appellant called, and in his treatment of the expert evidence.

HELD: Appeals dismissed. With regards to the conviction appeal, there was no reversible error. Some of the trial judge’s comments were troubling and therefore not endorsed, but they did not play an operative role in the judge’s decision that the appellant had not made out her claim that she was NCR when she committed the offences. With regards to the Crown’s appeal, the minimum sentence was not unconstitutional vis-à-vis the appellant’s particular circumstances, but that did not end the inquiry. The mandatory one-year minimum sentences for all subject offences were struck and rendered inoperative. A one-year term would have been grossly disproportionate and would have represented cruel and unusual punishment. Reading the judge’s decision in its entirety, it was clear the judge was well-aware of the various sentencing principles and there was no cause to interfere. In imposing a 15-month conditional sentence with strict conditions followed by two years’ probation, he was careful and thorough in his analysis. The offences the appellant committed were serious and had to be denounced and deterred. However, the appellant also suffered from a mental illness that did not pardon her but was a legitimate factor for the judge to consider on sentencing. She had already paid for what had happened through the loss of her teaching career and public humiliation. The sentence was punitive and adequately addressed deterrence and denunciation.

R. v. Hood, [2018] N.S.J. No. 41, Nova Scotia Court of Appeal, M. MacDonald C.J.N.S., M.J. Hamilton and D.R. Beveridge JJ.A., February 22, 2018. Digest No. TLD-Mar122018006