In a recent case in the Onatrio Superior Court of Justice, the mandatory minimum one year jail sentence for Sexual Exploitation was found to be unconstitutional. This decision is part of what is now a long line of cases where mandatory minimum senteces for sexual offences have been struck down. In the decision of R. v. Cristoferi-Paolucci, Justice McWatt looks to two hypothetical situation where the mandatory minimum would be grossly disproportionate:
1) The 20-year-old accused is a neighbor and close family friend to a 17-year-old complainant. The neighbour sometimes watches the complainant when her parents are out of town. She is in a position of trust and authority over the complainant. One night, the complainant comes to tell the neighbour that the complainant’s family is having car trouble. In that interaction, the neighbour touches the complainant’s breast briefly. This is not a far-fetched situation. It is the exact scenario in R. v. L. (C.) (2013 ONSC 277 (Ont. S.C.J.) at para. 2), but for the difference in the age and gender of the offender. Although inappropriate and criminal, if the Crown decided to proceed by indictment, the neighbour, a first time offender, would be subject to one-year imprisonment. This would be grossly disproportionate to the offence.
2) Another reasonable hypothetical: the 60-year-old teacher is answering questions for students before exams. She is an esteemed teacher, with strong family support. It is her first offence. She is taking calls in preparation for an upcoming exam. The student-caller tells the teacher that he thinks she is beautiful. In a moment that is completely out of character, she invites the 17-year-old student to touch her breasts. The 17-year-old immediately tells his mother. The esteemed teacher loses her job, is exposed in the media, and is genuinely remorseful. This is not a “far fetched” hypothetical, it is an extension of the factual scenario in Careen (R. v. Careen, 2012 BCSC 918 (B.C. S.C.)). If the Crown decided to proceed by indictment, for a grave lapse in judgment (less severe than that in Careen) this teacher would be imprisoned for 12 months. This would also be grossly disproportionate.
These hypotheticals offer guidance as to the kinds of cases where an offender may get a sentence below the mandatory minimum.