Law Times

Page 2 August 5, 2013 Law Times • NEWS Aboriginal offender's challenge to mandatory minimums fails BY YAMRI TADDESE Law Times A Superior Court judge has found that the mandatory minimum sentence for sexual interference hasn't had "an adverse impact" on an aboriginal offender even when measured against the R. v. Gladue principles. The 60-year-old man, identified only as T.B. to protect the identity of his victim, was convicted of sexual interference after he sexually assaulted his five-year-old granddaughter while she was in his care overnight in 2007. Upon his conviction, the appellant launched a constitutional challenge to the 14-day mandatory minimum sentence, essentially arguing that the minimum sentence goes against his equality rights as stated by the Supreme Court of Canada in Gladue. The Gladue decision recognized that the sentencing of aboriginal people should consider their overrepresentation in prisons and history of systemic discrimination. "The primary issue here is whether mandatory minimum sentences violate s. 15, in the case of aboriginal offenders, because these provisions cause adverse effects on a historically disadvantaged group," wrote Justice Michael Code in R. v. T.M.B. on July 19. The mandatory minimum sentence for sexual interference has since increased. According to amendments to the Criminal Code that came into force last year, the minimum sentence for the same offence is now 90 days when the Crown moves summarily. In a 30-page decision, Code found the 2005 mandatory minimum sentence had no "adverse effect" on the appellant's case since his sentence was for 18-months, a term far longer than the 14-day floor. The mandatory minimum sentence was also not relevant because there couldn't have been a conditional sentence for the appellant's offence, the judge said. "At this stage, when considering only the s. 15(1) Charter challenge to s. 151(b), it is sufficient to state that this was a case that required a sentence of imprisonment and it was not an appropriate case for imposition of a conditional sentence," wrote Code. "Accordingly, the 14-day mandatory minimum sentence had no adverse impact on B." Code continued: "A long line of binding authority had already held and continued to hold, prior to and after 2005, that conditional sentences would 'rarely' be appropriate in cases involving sexual assault and sexual interference against children, when committed by adults in positions of trust, due to the pressing need to emphasize denunciation and deterrence in such cases." Jonathan Rudin acted for www.lawtimesnews.com Aboriginal Legal Services of Toronto as an intervener in the case. "We were arguing that mandatory minimum sentences violate the equality rights of aboriginal people," he says. "We were not arguing that mandatory minimum sentences were violating the cruel and unusual provision. We were not arguing they were grossly disproportionate. We were arguing that they violate equality rights because when a judge sentences an aboriginal person to jail they would not otherwise sentence to jail, that makes overrepresentation worse." Although he and his colleagues at Aboriginal Legal Services of Toronto are disappointed the mandatory minimum sentence was upheld in this case, they respect Code's findings, Rudin adds. "I think the bigger issue is that the issue of mandatory minimum sentences and aboriginal people is only going to continue to be an issue the court is going to look at," he says. The Supreme Court of Canada will be looking at the same issue in another case next year. Mandatory minimum sentences take away some of the discretion judges have, according to Rudin. "The reasons judges have to rely on mandatory minimum sentences is that decisions are made by Crown attorneys that tie their hands," he says. David McRobert, a member of the Ontario Bar Association's aboriginal law section, also notes that part of the trouble in such cases comes from the discretion legislators are taking away from judges. "Remember, part of the difficulty around this is that the Harper government has made criminal law a moving target," he says. "It's getting more stringent every year." The purpose of mandatory minimum sentences is to give people sentences they wouldn't normally receive, Rudin notes. "The reason mandatory minimum sentences exist is because legislators don't believe that judges in the ordinary course of events would sentence every offender to that length of time." "There is no question," Rudin adds, that judges would continue to face questions similar to this case where aboriginal offenders are involved. After considering the various aggravating and mitigating factors, Code handed down a 90day intermittent sentence to the appellant, who will serve the time on weekends. The revised affidavit was "the first sign from B. of acceptance, shame, and a commitment to change, albeit belatedly," wrote Code. The sentence "would adequately reflect the importance of denunciation and deterrence in this case but would also encourage what appear to be the beginnings of restorative and reformative change in B.," he added. The issues Code had to consider in this case were both complex and important, says McRobert. Code had to balance the Gladue principle with the harms associated with child sexual abuse and sending a uniform denunciatory message. On top of that, the judge also considered the efficacy of incarceration in the appellant's case. "He has tried to balance these factors. This is a hard set of facts. This is a really difficult case," says McRobert. "From the evidence that I reviewed in this decision, this is a man who has otherwise really made an effort to live a fairly normal life," McRobert adds, noting that the specific circumstances of the case, including the appellant's age, affected the judge's findings. Rudin says he doesn't expect there will be a further appeal in the case. LT

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