May 11, 2018
Kasirer, Vauclair, Hogue
Appeal from the sentence. Allowed.
Following a conviction on the offence of sexual interference with a person under the age of 16 years set out in s. 151 of the Criminal Code (Cr. C.) (R.S.C. (1985), c. C-46), the appellant was sentenced to 12 months of detention and 18 months’ probation. He faults the judge for failing to rule on the argument that the minimum sentence is cruel and unusual and, for giving insufficient reasons for sentencing him as he did.
Since the case was heard, during deliberations, the Court of Appeal rendered judgment in Caron Barrette c. R. (C.A., 2018-04-03), 2018 QCCA 516, SOQUIJ AZ-51482339, 2018EXP-961, stating that the mandatory minimum sentence stipulated in s. 151(a) Cr. C. is contrary to s. 12 of the Canadian Charter of Rights and Freedoms and that the provision is not protected under s. 1. In these circumstances, the Court must merely determine whether the sentence imposed on the appellant is fit.
The trial judge’s decision does not comply at all with the duty to give reasons, imposed by both s. 726.2 Cr. C. and the case law. A judge may not, ex cathedra, state that a sentence is reasonable. In this case, there was no analysis of the mitigating and aggravating factors considered by the judge to find that a 12-month prison sentence was appropriate. While a judge may, following the principle established in R v. Lloyd (S.C. Can., 2016-04-15), 2016 SCC 13, SOQUIJ AZ-51278243, 2016EXP-1224, J.E. 2016-666,  1 S.C.R. 130, avoid ruling on a question of constitutional validity or more specifically, on the minimum sentence when determining that the alleged violation does not apply to the case being heard, a judge cannot set aside the debate to avoid the task of ruling on a constitutional question. Given that the judge implied that he would have imposed a lighter sentence than the minimum one, but for the law, the judicial exercise required for him to set aside the constitutional argument had to be reasoned, which it was not. Failing sufficient reasons, the deference otherwise due by the Court must be greatly attenuated, and there is no cause to show the usual deference.
Given the objectives of deterrence and denunciation and those of rehabilitation, a prison sentence of 90 days to be served intermittently, with a probation period of 18 months under supervision are, in this case, appropriate.
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