Accused convicted of being a party to a sexual assault on a 14-year-old girl who was intoxicated at the time. Digital penetration and oral sex. Accused held the Complainant’s legs while another individual had sexual intercourse with her. Mandatory minimum sentence for the party offence was 5 years under s. 272(2)(a.2) CC. Defence challenged the minimum and sought a sentence of 2.5-3 years’ jail, considering Gladue factors, vulnerable position in her relationship with the co-accused, and youthfulness (age 24).
Held: Mandatory minimum unconstitutional; 32 months’ jail.
“Quite separate from any consideration of role or responsibility [of the offender], section 272(2)(a.2) makes no distinction based on the gravity of the assault.” Even being a party to a minor sexual assault, like the groping or kissing set out in the Court’s reasonable hypotheticals, would attract a minimum 5-year sentence. The mandatory minimum sentence amounts to cruel and unusual punishment contrary to Charter s 12. Thirty-two month jail sentence was fit in the circumstances of this case.
M. Clancy – Defence Counsel