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Minimum sentence for sexual touching of a young person unconstitutional, judge rules

Judge rules minimum mandatory sentence 'invalid,' says it's disproportionate to offences on the lower end of the scale
A podium in court.

A B.C. Supreme Court judge has ruled minimum sentencing for sexual touching of a young person is unconstitutional. 

“There is no dispute that sexual interference with a child is a grave offence," Justice Lindsay Lyster said in an Oct. 27 ruling released Nov. 24. "Regardless of the nature of the conduct involved, the objective gravity of the offence flows from the fact that the victim of the offence must be, by definition, a child."

However, she said such offences cover “a wide spectrum of conduct" — from an unwanted or accidental caress, to child pornography and sexual interference.

So, Lyster said, if the offence is on the lower end of the gravity scale, a minimum sentence could be “grossly disproportionate" to the nature of that offence.

“The imposition of such a sentence would, in those cases, outrage the sense of decency of most Canadians. It would result in cruel and unusual punishment,” Lyster said.

“Accordingly, I declare the minimum mandatory sentence ... to be invalid and of no force or effect,” Lyster said.

The issue, Lyster explained, hinged on phrasing in how the law is examined.

“The phrase ‘without consequences for the victim' needs to be recast as ‘where there is no reasonably foreseeable potential for harm,’” Lyster said. “With this change, I find that this is a reasonable hypothetical that can be employed to determine if the 90-day mandatory minimum sentence would be grossly disproportionate.”

The decision came in a B.C. Supreme Court of Appeal of a 2020 provincial court decision in which "C.B.A." was convicted of touching someone under 16 years of age for a sexual purpose.

At the time of the September 2017 offence, "M.A." was 15 and knew C.B.A. as a cousin of some sort who lived nearby.

M.A. was at C.B.A.’s home where she was to stay overnight and then babysit his children the following day while he and his wife were away. In her 2020 decision, Judge S.D. Frame said M.A. fell asleep. When she woke up, she realized C.B.A. was touching her under her shorts.

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