Dutil, Giroux, Gagnon
Application for leave to appeal from the sentence and from a declaration of constitutional invalidity of the minimum sentence set out in section 272(2)(a.2) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.). Granted. Appeal from the sentence and from the declaration of constitutional invalidity. Dismissed.
The Crown and the Attorney General of Quebec seek leave to appeal from two judgments of the Court of Quebec rendered pursuant to the two-step process of R. v. Nur (S.C. Can., 2015-04-14), 2015 SCC 15, SOQUIJ AZ-51166481, 2015EXP-1133, J.E. 2015-622,  1 S.C.R. 773, applicable when assessing the constitutional validity of a minimum sentence.
In the first judgment, the judge found that a sentence not exceeding three years of custody was proportionate to the offence committed by the respondent, that is, having sexually assaulted a person under the age of sixteen years and causing her bodily harm. In the second judgment, he found that the minimum sentence of five years’ imprisonment set out in section 272(2)(a.2) Cr. C. was constitutionally invalid and inoperative with respect to the respondent and sentenced him to three years’ imprisonment.
The applicants failed to establish that the judge made an error in principle or that he exercised his discretion unreasonably and imposed a demonstrably unfit sentence justifying appellate intervention. The judge was therefore correct in determining that a sentence of three years’ imprisonment was proportionate to the offence committed by the respondent, taking into account the mitigating factors such as his young age, the behavioural problems he experienced as an adolescent and his immaturity, as well as the seriousness of sexual offences committed against children.
The judge applied the wrong test in his analysis in finding that the minimum sentence of five years was grossly disproportionate in the respondent’s case. However, the consideration of reasonably foreseeable situations leads to the conclusion that the mandatory minimum sentence set out in section 272(2)(a.2) Cr. C. would result in a grossly disproportionate sentence in many reasonably foreseeable situations. It therefore infringes section 12 of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I).
Finally, the infringement of the right protected by section 12 of the Charter is not justified under section 1. While there is a rational connection between the imposition of a minimum sentence of five years’ imprisonment and sexual assault causing bodily harm to a person under the age of sixteen years, the applicants failed to establish that less harmful means of combatting such assault, whether by narrowing the reach of the law or by providing for judicial discretion in exceptional cases, were not available. Nor have the applicants shown that the impact of the limit on offenders deprived of their rights is proportionate to the good flowing from their inclusion in the law.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca