R. v. E.R.D.R.

R. v. E.R.D.R.

The mandatory one‑year minimum under s.271(a) did not amount to gross disproportionality as applied to this particular offender, but it would be grossly disproportionate in reasonably foreseeable less‑serious applications (e.g. low‑end sexual touches involving young offenders and near‑consenting circumstances); therefore s.271(a) violates s.12 of the Charter; Crown granted leave to argue s.1 and matter adjourned to schedule s.1 and sentencing submissions.

Citation
2016 BCSC 684
Parties
Crown: Regina; Accused: E.R.D.R.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
3 March 2016
Procedural Posture
Criminal — Sexual Assault / Charter S.12 Challenge to Mandatory Minimum; S.1 and Sentencing Submissions Adjourned for Schedule
Outcome
Declared s.271(a) mandatory one‑year minimum to violate s.12 of the Charter; s.1 justification and final sentencing deferred.
Legal Topics
Sexual Assault, Mandatory Minimum Sentences, Cruel and Unusual Punishment (s.12), Section 1 Justification, Sentencing Principles
Source Language
English
Criminal Law Constitutional Law Charter Litigation Sexual Assault Mandatory Minimum Sentences Cruel and Unusual Punishment (s.12) Section 1 Justification Sentencing Principles

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Parties

Regina

Crown

E.R.D.R.

Accused

Procedural Posture

Criminal — Sexual Assault / Charter S.12 Challenge to Mandatory Minimum; S.1 and Sentencing Submissions Adjourned for Schedule

Legal Issues

  1. 1 Whether the one‑year mandatory minimum in s.271(a) of the Criminal Code constitutes cruel and unusual punishment contrary to s.12 of the Charter as applied to the offender before the court
  2. 2 Whether s.271(a) is grossly disproportionate in reasonably foreseeable applications to others
  3. 3 Whether, if s.12 is breached, the provision can be justified under s.1 of the Charter (deferred)

Ratio Decidendi

The mandatory one‑year minimum under s.271(a) did not amount to gross disproportionality as applied to this particular offender, but it would be grossly disproportionate in reasonably foreseeable less‑serious applications (e.g. low‑end sexual touches involving young offenders and near‑consenting circumstances); therefore s.271(a) violates s.12 of the Charter; Crown granted leave to argue s.1 and matter adjourned to schedule s.1 and sentencing submissions.

Court Disposition

Declared s.271(a) mandatory one‑year minimum to violate s.12 of the Charter; s.1 justification and final sentencing deferred.

Orders

  • s.271(a) declared to violate s.12 of the Charter as having reasonably foreseeable grossly disproportionate applications
  • Crown granted leave to make s.1 submissions at a later hearing