A custodial sentence, with a lengthy period of probation, is appropriate and proportionate for an Indigenous offender found guilty of sexually assault. Serving a conditional sentence would not endanger the safety of the community with the imposition of appropriate conditions.
This matter involves the sentencing of an Indigenous man who was found guilty of the offence of sexual interference, contrary to s 151 of the Criminal Code [“CC”]. At the time of the offence he was 18 years of age and the victim was 13 years of age and they both attended the same secondary school.
Sexual interference is a hybrid offence; the Crown may elect to proceed by way of indictment or summary conviction. The Crown proceeded by way of summary conviction, under s 151(b) CC. The convicted is therefore liable upon sentencing to a term of imprisonment of not more than two years less a day, and to a mandatory minimum sentence of imprisonment for a term of 90 days. The convicted has no prior criminal record and is now a first-time offender. He challenges the constitutionality of the mandatory minimum sentence of 90 days imprisonment provided for in s 151(b) CC, as being a violation of his s 12 Charter right of not being subjected to cruel and unusual treatment or punishment.
It was recently held that the mandatory minimum of a one-year term of imprisonment under s 151(a) CC, where the Crown can proceed by way of indictment, violates s 12 of the Charter and cannot not be saved under s 1 (R v Scofield, 2019 BCCA 3). The defence submits part of the individualized sentencing process this Court should consider is a suspended sentence pursuant to s 731(1)(a) CC, with a lengthy period of probation. Alternatively, if imprisonment is necessary, it should be served in the community under a conditional sentence order pursuant to s 742.1 CC, then followed by a significant period of probation. The existence of the s 151(b) CC statutorily prevents this Court from imposing either of the suggested sentences, until it has concluded that the mandatory minimum sentence violates s 12 of the Charter and cannot be saved under s 1. If the Court comes to that conclusion, it can then apply the available remedy within its jurisdiction.
It was agreed among the parties that if this Court found that the appropriate sentence is 90 days or higher, it can impose the sentence without addressing the constitutional question, as it would be unnecessary to do so (R v Lloyd,  1 SCR 130). If this Court, however, concludes that the proportionate sentence is below 90 days, then it should assess whether the 90-day mandatory minimum sentence is grossly disproportionate personally for the convicted.
Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence and the specific circumstances of the offender (R v Shoker, 2006 SCC 44; R v Angelillo, 2006 SCC 55). Section 718.2(e) does not permit the court to impose an unfit sentence (R v Jackson, 2012 ABCA 154). In deciding whether an Indigenous offender should be incarcerated, a judge must use all available information before the court about an offender to determine whether restorative justice should be given more weight than traditional objectives of sentencing, such as deterrence and denunciation.
In sentencing an Indigenous offender, the sentencing judge must carry out a three-step process: 1) examine the unique systemic or background factors common to Indigenous people as a group; 2) consider the personal circumstances of the offender which resulted in the offender committing the crime for which that offender is before the court; and 3) strive to arrive at a sentence that is informed, just, and appropriate in the circumstances, having regard to the information obtained (R v Gladue,  2 CNLR 252).
There is no burden on an Indigenous offender to establish a causal link between Gladue factors and the commission of the offences (R v Eustache, 2014 BCCA 337). Although the accused bears the onus of establishing mitigating factors on a balance of probabilities, it can be difficult for Indigenous offenders to establish direct causal links between the circumstances and the offending behaviour (R v Ipeelee,  2 CNLR 218). While an Indigenous offender need not establish a direct causal link, the Gladue factors nonetheless need to be tied to the offender and the offence in some way (R v DB, 2013 ONCA 691).
The conditional sentence order will permit the convicted to continue to receive the significant benefit of his cultural engagement, the support of his family and his community, be able to continue his employment, and at the same time to receive sex offender treatment. The Accused is sentenced to a five-month conditional sentence order and 30 months of probation. Subsequent to this determination, there will be a pending consideration by this Court of the s 12 Charter arguments.