By Charlene Tebbutt

Provincial court judge dismisses challenge to mandatory minimum sentence requirement

Oct 15, 2018 | 4:22 PM

A provincial court judge in Prince Albert has dismissed a challenge to the federal government’s mandatory minimum sentencing requirement in a local case involving the sexual touching of a young girl.

Judge Hugh Harradence dismissed the challenge in a decision handed down Friday at Prince Albert Provincial Court. While he found the one-year minimum sentence was “excessive,” Harradence said it was not grossly disproportionate in the case.

Had the challenge been successful, it would have been the first case at the provincial court level in Saskatchewan to successfully go against the mandatory minimum sentence clause. The federal government introduced mandatory minimum sentencing limits for many criminal code charges, setting the minimum jail term at one year for sexual assault.

The mandatory minimum has already been successfully challenged in Queen’s Bench, which is a higher court in Saskatchewan.

Friday’s case involved a 34-year-old man who pleaded guilty to sexual interference earlier this year in relation to an incident where he touched an 11-year-old girl. The incident dates back to January of 2015, where the man touched the girl twice over her clothes while laying together on a bed, and then put her foot on his erect penis.

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While he pleaded guilty to the charges of sexual interference and sexual touching, the man’s lawyer argued he should not have to serve the mandatory minimum one-year jail term. Lisa Abbott represented the man and said the case also involved significant Gladue factors – stemming from the impacts of the residential school system – adding the incident was brief. 

Abbott said mandatory minimum sentencing requirements take the decisions out of the hands of judges and negate the impacts of Gladue factors in sentencing. She said she felt the challenge was a good “test case,” adding her client was prepared for any outcome.

“He knew that it was somewhat of an uphill battle because we were challenging a portion of the Criminal Code that hasn’t been challenged at the provincial court level, so he was well aware of the fact that he might be taken into custody,” Abbott said.

The Crown proceeded by indictment in the case, triggering the mandatory one-year sentence. Had the Crown chosen to go ahead by the less serious summary conviction, the mandatory minimum sentence would have been lower. 

In court Friday, Harradence said the man showed remorse and had turned his life around, saying the incident was one that called for “restorative justice.” Prosecutor Catherine Gagnon said the incident was serious and argued it was the Crown’s discretion to seek out the higher minimum sentence.

She said the man was in a position of trust over the girl, and had become aroused during the incident.  

“Based on the facts, I thought it deserved more than one year,” Gagnon told paNOW. “At least the minimum one year of jail.”

The man was given credit for time already served in jail while his case was before the courts, leaving him with 159 days left to serve. Harradence also suggested the man be considered for all alcohol treatment and work training programming. He was also ordered to submit a DNA sample to the national registry and will be listed on the sexual offender registry for the next 20 years.

Independent Senator Kim Pate introduced a private members’ bill in April to allow judges to determine minimum sentences on individual cases. The bill is currently making its way through the legislative process.

Charlene.tebbutt@jpbg.ca

On Twitter: @CharleneTebbutt