The man, identified in the ruling as J.L.M., was convicted in late 2012 and sentenced to seven months of imprisonment.Wesley VanDinter/Getty Images
British Columbia's top court has declared a mandatory minimum sentence unconstitutional in a case in which a man was convicted of communicating with his 16-year-old niece for the purpose of obtaining sexual services.
The B.C. Court of Appeal delivered its split-decision Thursday. The man, identified in the ruling as J.L.M., was convicted in late 2012 and sentenced to seven months of imprisonment.
His B.C. Supreme Court trial heard the man – who was 46 at the time of the offence – knew his niece was abusing drugs and told her he was looking to hire someone for sexual purposes. The niece told him she might be interested because she needed the money. The sexual activity between the two occurred soon after.
The man, who was convicted of communicating or obtaining sexual services from a person under the age of 18, argued the mandatory minimum sentence of six months' imprisonment for such an offence violated the Charter right not to be subjected to cruel and unusual punishment. He said the trial judge also failed to properly consider his Aboriginal heritage, resulting in a sentence that was demonstrably unfit.
The Supreme Court of Canada ruled in 2012 that judges must consider an offender's aboriginal heritage as a mitigating factor in sentencing.
In its ruling Thursday, two of three appeal court judges declared the mandatory minimum sentence in s. 212(4) of the Criminal Code to be of no force or effect.
Justice Elizabeth Bennett, writing for the majority, said the mandatory minimum sentence was "grossly disproportionate" as it applied to J.L.M. and in a reasonable hypothetical context. She said his offence was opportunistic and caused significant harm to his niece, but added J.L.M. was a first-time offender whose life had been fraught with difficulty and who suffered from mental-health and physical issues.
Justice Bennett imposed a conditional sentence of nine months to be served in the community and said J.L.M. must be under house arrest between 6 p.m. and 8 a.m.
"In my view, considering all of the above, a conditional sentence order in this case would sufficiently address the relevant sentencing principles, including denunciation and deterrence," she wrote.
Justice Mary Saunders, who dissented, said she would not declare the section of the Criminal Code unconstitutional. She said the mandatory minimum sentence was imposed to protect young people from sexual exploitation and is not grossly disproportionate.
Justice Saunders agreed the trial judge did not properly consider the mitigating factors involving J.L.M., as well as his Aboriginal heritage, and said she would have allowed the appeal only to reduce the imprisonment term from seven months to six months.
The ruling said the mandatory minimum sentence in s.212(4) of the Criminal Code was introduced in 2005 by the federal Liberal government. It said an Ontario court has also struck down the mandatory minimum sentence for such offences.
Eric Purtzki, one of the lawyers who represented J.L.M., said the section of the Criminal Code under which his client was convicted was replaced in 2014 by s. 286.1(2). He said the new provision allowed for a longer maximum penalty – 10 years instead of five – but kept the mandatory minimum of six months.
Mr. Purtzki said since the section that was declared to be of no force or effect has been replaced, even though the mandatory minimum remained the same, it is unclear how the situation will proceed.
"The argument would go that 286.1(2), the new provision, the portion that prescribes a minimum sentence of six months for a first offence, would be unconstitutional," he said in an interview.
A federal Department of Justice spokesperson in a statement wrote it will carefully review the B.C. Court of Appeal ruling.
The spokesperson said the Minister of Justice is already reviewing all mandatory minimum penalties as part of a broader examination of the criminal justice system.