Mandatory minimum sentencing for child sex offenders is unconstitutional, rules B.C. judge
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Before imposing sentence, the judge is expected to receive submissions from the lawyers on whether the mandatory minimum law should be struck down.
Photograph by: Ian Mulgrew , PNG
The B.C. Supreme Court has found a mandatory minimum sentence of one year in prison for an offender who sexually assaults a victim under the age of 16 to be unconstitutional.
In declaring the law had violated the Charter of Rights, the court first looked at whether the mandatory minimum was grossly disproportionate for a 26-year-old offender convicted in Vernon of sexually assaulting a six-year-old girl.
Then the court turned its attention to whether there might be hypothetical cases where a minimum of one year in jail would amount to cruel and unusual punishment and therefore violate an offender’s rights.
Justice Alison Beames found that the appropriate sentencing range for the Vernon man, only identified by the initials E.R.D.R. due to a publication ban, was between nine and 18 months in prison and therefore a mandatory minimum of one year in prison for him would not be grossly disproportionate.
But looking at the hypothetical cases, the judge accepted from the defence as reasonable a hypothetical case of a young, just turned 18-year-old, with no criminal record, who steals a kiss from, or perhaps lays a hand on a 15 almost 16-year-old girl’s legs while on a bus, or touches her on the breast at a party while he is intoxicated.
“I find that that is a reasonable hypothetical, and I find that the one-year mandatory minimum sentence would be grossly disproportionate in those circumstances.” The judge therefore found the mandatory minimum to be unconstitutional.
In the case of E.R.D.R, the sexual assault was a one-time occurrence, taking place at the residence where he lived with his mother. The victim, identified only as E.A., is the stepdaughter of a brother of E.R.D.R. She was considered to be E.R.D.R.’s niece and she thought of him as her uncle.
The sexual assault involved E.R.D.R. touching E.A.’s private parts while she was lying asleep on a couch. The Crown sought a sentence of 16 to 18 months in prison and three years probation. The defence, noting that E.R.D.R. had been diagnosed with a major mental illness and had pleaded guilty to the offence, argued he should receive either a suspended sentence or an intermittent jail term of 90 days or less.
Before imposing sentence, the judge is expected to receive submissions from the lawyers on whether the law should be struck down. The ruling on the constitutional issue was given orally March 30 and released in written form on the court’s website this week.
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