IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Defendant has entered guilty pleas to two charges of sexual touching contrary to s. 151 of the Criminal Code. As the Crown has proceeded summarily these offences carry a mandatory minimum sentence of 90 days imprisonment, although the Crown seeks a significantly higher sentence of between 10 and 14 months imprisonment, to be served concurrently, and followed by two years of probation. The Crown also seeks certain ancillary orders.

[2]           Defence counsel argues that even a sentence at the mandatory minimum level would be grossly disproportionate and would constitute cruel and unusual punishment in the circumstances of this case or a reasonable hypothetical case and therefore in violation of s. 12 of the Charter. If I find that to be the case the remedy available to this court is to decline to impose such a sentence and to then impose the sentence the court deems fit and proportionate. Defence counsel urges the court to impose a Conditional Sentence order of maximum length followed by two years of probation.

[3]           I am grateful to my brother Judge MacCarthy for his exhaustive canvassing of the case authorities pertaining to this issue in R. v. C.G.J., 2019 BCPC 252. His judgment canvasses both the authorities setting out the procedure to be followed in a challenge to mandatory minimum sentences, and the factors to be considered.

[4]           As to the matter of procedure, counsel are agreed that the court should first consider, on the basis of counsels’ submissions, whether absent the mandatory minimum sentencing provisions, a sentence of at least 90 days is fit and proportionate. If the court is of the view that such a sentence would not be imposed but for those provisions, then sentencing submissions would move to a second stage to consider the Charter issue. Conversely, if the court is satisfied that a sentence of at least 90 days is fit and proportionate it is unnecessary to proceed to the second analysis.

[5]           The charges involve two girls, one of whom was 15 years old, and the other of whom was 12 years old. The Defendant had known the older victim for about two months during which period he had asked her to lie to his parents about her age. They had met through an internet “teen lounge”. The younger victim was not known to the Defendant prior to the date of the sexual touching.

[6]           On the evening in question the two girls were to have a sleepover at the older girl’s home. The older girl texted the Defendant asking if he would purchase liquor for them. He agreed to do so and picked the two girls up at a location near the older girl’s home and then purchased some liquor. They then went to a parking lot adjacent to a recreation centre and the girls consumed some of it. Apparently the two girls were enjoying themselves and were both flirting with the Defendant, who was not drinking at all.

[7]           They left the parking lot and proceeded to a house where the Defendant was house sitting, drank some more liquor, and eventually ending up in a downstairs bedroom. The older girl had gone down first, leaving the younger girl upstairs. When the younger girl eventually went downstairs she found her friend on the bed with the Defendant with her clothing removed. The Defendant had already engaged in oral sex and other sexual activity with the older girl. The younger girl also got onto the bed and lay down. Some sexual activity then took place between the Defendant and the younger girl.

[8]           At one point the Defendant attempted to remove the younger girl’s leggings but this attempt was unsuccessful. He did however put his hand under her leggings and penetrate her vagina with his finger. The Defendant told the psychologist tasked with doing a psychological assessment that he didn’t think there was anything wrong with his conduct as the two girls seemed to be enjoying it.

[9]           At some point around four o’clock in the morning the older girl’s father called her and told her to come home and the Defendant drove them there. He also asked the girls not to tell anyone what had taken place.

[10]        He expressed confusion when he later received a text from the older girl telling him he was “disgusting and gross” and that what he did was unforgiveable. I have concluded that he knew at the time that the older girl was likely under the age of consent, and that the younger of the girls was certainly under the age of consent. I have further concluded that he believed there was nothing wrong with what he did as long as it was kept a secret. After all, he said, the girls were enjoying it. I conclude from this that any remorse he felt originated with his arrest and subsequent charges.

[11]        Notwithstanding the fact that these two intoxicated young girls appeared at least to some extent to be willing participants, they have suffered significantly as a result. Both girls went for counselling, the younger one with two different counsellors. The younger girl struggles with anxiety and depression and has isolated herself socially to the point where her mother felt it was necessary to change her school. She continues to absent herself from school and has dropped all extracurricular activities. The older girl also suffers from anxiety and has tended to isolate herself from social activities.

[12]        This is the first time the Defendant has been before the courts, and the pre-sentence and psychological reports reveal no underlying substance abuse or mental health issues. He was raised in a supportive and loving family and is now 24 years of age, 21 at the time of the offences. He is currently engaged to a woman three years his senior and she describes the Defendant as “the best thing that’s ever happened to me”. His mother also describes him in very positive terms. These factors lend credence to the psychological opinion, based on testing, that the Defendant is a pro-social individual with a low risk of re-offending. Dr. Darcangelo writes that “there is no indication that the current offences were motivated by deviant sexual interests or antisocial values/attitudes (e.g., a desire to control or harm the victims, a lack of empathy, etc.)”. She goes on to say that the offences appear to have resulted from a lack of judgment and poor decision making, including a tendency to rationalize his behaviour, a failure to consider the potential consequences of his behaviour and a failure to consider the negative impact of the victims’ intoxication on their behaviour. These comments from the psychologist point to immaturity, at the least.

[13]        There is no doubt that the Defendant has learned a great deal from the criminal process that has been brought to bear against him. It has been, and will continue to be, a harsh lesson for him.

[14]        The Crown has proceeded summarily against the Defendant and as such, the maximum prescribed penalty is a jail sentence of two years less a day. The minimum prescribed punishment is a jail sentence of 90 days.

[15]        The aggravating factors to be considered in this case are the age of the two victims, the taking advantage of the victims’ intoxication, the providing of liquor to them in the first place, and the lasting negative impact on the victims that persists to this day.

[16]        There are also mitigating factors to consider. The Defendant has, by his early pleas, relieved to the extent possible any anxiety the complainants may have felt about testifying. The Defendant is also a young man with no criminal record. The report writers allude to his remorse, but not the kind of remorse that one might feel immediately after doing something that one knows is wrong. I think it is more correct to say that the Defendant has developed insight into his behaviour since being arrested and charged.

[17]        Defence counsel argues that absent the mandatory minimum sentence provisions this is an appropriate case for a Conditional Sentence Order of maximum length followed by two years of community supervision. He points out that deterrence has been achieved not only by the fact of his arrest and the subsequent criminal process, but also by the SOIRA order that will be imposed. He also refers to the mitigating factors referred to earlier and emphasizes the low risk of re-offending.

[18]        I take no issue with those submissions as far as they go. I do not believe a jail sentence is necessary for purposes of specific deterrence. However, Parliament has enacted this offence because it has determined that persons under the age of 16 do not possess a sufficient level of judgment and maturity in order to give true consent to touching of a sexual nature from an adult. In my view the principles of sentencing to be emphasized in a case such as this are those of general deterrence and perhaps more importantly, denunciation. The impact of these principles can, in exceptional circumstances, be ameliorated where, for example, there may be some diminished intellectual capacity or other factor that lessens the moral culpability of the offender.

[19]        I regret to say that this is not the case here. The Defendant did what he did with his eyes open, believing that no one would ever know. He failed to consider any potential negative impact on his victims, and took comfort in the fact they appeared, at least to some extent, to have enjoyed the sexual activity at the time.

[20]        The mitigating factors in this case are significant, and persuade me that the sentence proposed by Crown counsel is significantly higher than necessary or desirable. However, a fit sentence in this case must still reflect society’s denunciation of his conduct. I am imposing a sentence of six months imprisonment on each count. The circumstances of this case, including the fact that both counts involve a continuing course of conduct, persuade me that the sentences should run concurrently.

[21]        The Defendant will be placed on a 24 month probation order following his release with the following conditions:

[22]        The Defendant will also be subject to a SOIRA order for his lifetime and will be required to provide a DNA sample.

[23]        Crown Counsel has asked me to consider an order under s. 161(1)(b) requiring the Defendant to refrain from engaging in any employment or volunteer work that finds him in a position of trust or authority towards any person under the age of 16. As I stated earlier in these reasons I accept that the Defendant is at low risk to reoffend and decline to make such an order as it may impede the Defendant’s ability to find gainful employment.