Section 12 of the Charter provides, “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”

A sentence will violate section 12 where it is grossly disproportionate to a fit punishment in the circumstances.  

A sentence is at greater risk of being grossly disproportionate where the offence captures a wide range of conduct and circumstances. 

See R v Forcillo, 2018 ONCA 402 (CanLII).

Sexual interference is such an offence as it captures a broad range of conduct from a touch “to the worst forms of human degradation.” 

R v Sandercock, 1985 ABCA 218 (CanLII) at para 11.

The issue of the constitutionality of the mandatory minimum for the indictable offence of sexual interference (s. 151(a) of the Criminal Code) has recently been considered by six courts of appeal across the country [FN]:

1.       the Quebec Court of Appeal in Caron Barrette c. R., 2018 QCCA 516, 46 C.R. (7th) 400;

2.      the Nova Scotia Court of Appeal in R. v. Hood, 2018 NSCA 18, 409 C.R.R. (2d) 70;

3.      the Manitoba Court of Appeal in R. v. JED, 2018 MBCA 123, 368 C.C.C. (3d) 212;

4.      the British Columbia Court of Appeal in R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379;

5.      the Alberta Court of Appeal in R. v. Ford, 2019 ABCA 87, 371 C.C.C. (3d) 250; and

6.      the Court of Appeal for Ontario in R. v. B.J.T., 2019 ONCA 694 (September 6, 2019).

In all six cases, the courts found that the one-year mandatory minimum sentence required by s. 151 of the Criminal Code contravened s. 12 of the Charter, being cruel and unusual punishment. 

Written by Stuart O’Connell, O’Connell Law Group.

[FN] The section 151 offence allows the Crown to elect to proceed by summary conviction or by indictment. The current mandatory minimum sentence for the offence when the Crown proceeds summarily is 90 days. In R. v. Drumonde, 2019 ONSC 1005, Schreck J. struck down the mandatory minimum for the summary conviction offence.